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T HE 



J U R I S T. 





VOL. XIII.— PART I. 



CONTAIMINO 

REPORTS OF CASES 

DECIDED IN 
AND IN THE 
WITH A 

GT^NERAL DIGEST OF ALL THE REPORTS PUBLISHED 

miRINO 

THE TEAR 1849. 

it 



LONDON: 

^ S. SWEET, CHANCERY IiANE; 
T. & B. STEVENS & S. NORTON, 26 BELL TARD and t94 FLEET STREET. 

DUBLIN:. 
HOBGBS ft SMITB, GRAFTON STBEET. 



1850. 



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JUDGES OF THE SEVERAL COURTS 

DUSIKG THE PEBIOB OF THE DECISIONS REPOBTED IN THIS VOLUME. 



iS^t I^is9 €ouvt at «ir|aiuers. 

Right Hon. Loed COTTENHAM, Lord High Chamcbllor. 



Bmt Hon. LoKD LANGDAL^ Masrk 

or m BoLLB. 
SiGBT Hon. SiK LANCELOT SHADVEU^ 

%MXh TiCS-ChAMCSZXOK OV ElfOXOMll. 



RiflHT Hon. Sir JAMES LEWIS KNIGHT 

BRUCE, Knt.; and 
Eight Hon. Sib JAHES WIGRABf, Kmt. 



Bight Hon. Lord DENMAN, Lord Cbibp SvBTicm. 
Sn. lOHH TKTTESON, Knt. i Sir WILLIAM WIGHTHAN, Knt. 

Sib JCm TATLOB COLERIDGB; Kmt, Sib WILLIAM ERLE, Knt. 



Right Hon. Sir THOMAS WILDE, Kht., Lord Chief Justice. 
fin THOUAS COLTMAN. Knt. | Sib CRESSWELL CRESSWELL. Knt. 

%M, WILLIAM HENRY MAULE. Knt. | Sib EDWARD VAUGHAN WILLIAMS, Knt. 

Sir THOMAS NOON TALFODRD/Knt. 



Right Hon. Sib FBEDEBICK PCJLLOCK, Knt., Lord Chibt Baron. 
tKBT Hon. Sib JAMES PARKE. Knt. i Sib ROBERT MONSEY ROLFE, Knt. 

laEDWABD HALL ALDEBSON, Kmt. | Sir THOMAS JOSHUA PLATT, Kmt. 



In Right Hon. Vicb-Cbaiicei.lor Sir JAMES LEWIS KNIGHT BRUCE, Kmt. 



Right Hon. Sib HERBERT JENNER FUST. . 



it^miBtoxSi eotttt antr ^tritiival^ Court 

BioRT Hon. STEPHEN LUSHINGTON. D.C.L. 



ATTOBNET^raifiRAL-SiB JOHN JEBVIS, Knt. 
SOUCrrOR^ENERAL— Sir SAMUEL ROMILLY, Knt. 
QUEEN'S ADVOCATE^ENEBAL— Sir JOHN DODSON, D.C.L. 
ADMIBALTY-ADTOCATE-JOSErH PHILLOIOBE; D.C Ji. , 

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— * tri-'Barton, Iiid;^ r>>,<'>'i 
— >e. Bishop ('AB8>«qiuH 

.♦-(aiajiBonHoii, 'lOW- - 

p. Bow<i>, 10-15.- 
— fiivcoQ (iuhabs. fifli 

V, Bjiibiii^gO ' ^Jjc-uH 

— — *. Bnd 
«. BuiiniijlHWJJll. 

fjustioes of). 
fiiMaa(lClia|iTiinn, 88.'> i> 
^W4asii£larretu;iuttnai, 450 

», tlaytou, -106 

». CiwpiftjTnnbiBCiOB) 

aoea ■ttiTi I'^uuub;) 

— V. Dyeri984i['.ll 

■hln(Jnst8-oQt4'47 
— — c. EilHmere (DdMbs. 

.(loqodsiAJpmiobt . .(InhibU 

of), 729 "v«>i 
iMwiilQii&rivtllOUkibl.'.O 
r. GlamorgaQBhirel(ftu- 

-nio3 iuf0 norJtiaul bneiO 
— «9^fmn>»ii0g« XOH'I 

t». Hall. 87 'J'-ii 

■ — - tibill:iaainemiiitl>i&^d^ 

■ -oioO /n OtMlliiaoyi, 100 if.jii( 

MU.'Hsrt:iiB«iiil9D -i -(Nii-i 

•)o-^vIidtwid) (JaMIceaafiV 

-fm9ji..Hatflf^kl Pev-arel :(>bii>) 
siolejin habi..of), 1070 
T^fMtfUitllll ''^ ore. Mo 

9. Hulloway.ea 

-4»ea.jUalttTO/FWir'A4, 409^ 
V. im^,\iiAiU«l:mn 

tfiftkb^uArM .^Jiiatical) 

W^.HiitiEX-*^ b.iK 

«XLangbriagi) &4:t- - 

— «. IiieadmiUiOtbin(>(Ii>> 



lit |IMtDT9<i .1 uiirllu;) 

— I iliii titi* SMlfcL 
wardiH toi Ow> 

»^ Mawb. IftlQ, 




tices I 

ii.,Prtti 

r. Triors ITftrawlok Un- 

)ul:^"cI 




•'St 



— Mack, loll 

q.iTgUea, ICa , 

,.,fic. of Manor 

,,{<iii; ii<^Kw ofj; 

' J iimworia i'. Baru- 

. I). AVyiiii, lff7 

R«id V. Allan, 10S2 

Langlott, 579 
Rensbaw, ex p., re Vila of 
NeMM .Md-isBn^.TrnM 
/.Bnitcrf iioBita*iM& Qtea 

pany. 274 - n.. 

BMittrds&. ota^<Afips^,.AU«: 
GcD. of J«tn»imi& 

e.fiMcUnilia Soolhtf 

£81 ,i'tl«ii9erieni(^illattimtl 

c Ooaia«ayv)98« — 

RaUwar 



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Google 



NAMES OF CASES IN THE JURIST. 



Tui 



.Rldunond'f Bxeeotora, tip., 
IV Vde of Neath lad Soath 
Wales Brawery JoinLatock 
ConiMiiiTt 727 
Utdiie V. SmiUi, 63 
RolMtaoii'*. Sonlfafit>» &S3 
Robinson v. Hedgar, 846 

. V. Little. 149 

■ V. WaddiBgtOQ, &37 

Rob Roy (The), 61&, 756 
Rodfaik V. GandeU, 1087 
R^era Price, 820 
RoUe v. Learmonth. 986 
Roaa V. GuideU, 941 
— r. Tork, Neweasde, and 

Berwick Railway Co., 610 
BoBalyn'a (CotmteaoO Troat, 
27 

Rowland v. Morgan, 23 
Radge v. Winnali, 737 
Rash, lkfai7,(In the Goods of). 
-712 

Bnaboat, ITie Hon. A., (In the 

Goods of), 458 
R^v. Reg., 2A9 
Ryan «. Oarite, 1000 
Rjlahda, «r r* Croodson, 

115. 

S. 

Sadler, « p., re North of 
England Joint-stock Bank- 
ing Company, 674 
St. Geor(^'a Steam-packet 
Company, re, 530 
' Sainter *. F^rgoson, 826, 833 
Salmon v. Glbbea, 35S 

V. Green, 272, 617 

Sanderson, e»p., re North of 
England Joint-stock Bank- 
ing Company, 740, 1061 
Sarah (TheV 26S 
Savery e. Lister, 79 
Sawyer r. Mills, 1061 
Sentance v. Porter, 980 
Sergrove v. Mayhew, 974 
Shadbolt r. Thornton, 597 
Sharp «. Arbathnot, 160, 219 
Sharpus, ex p., re UoiTCrsal 

Salvage Company, 723 
Shaw e. York and North Mid- 
land Railway Company, 363 
Sbelton «. Watson, 203 
Sbersbyv. Soath-eastem Rail- 
way Company, 689 
Sherwood r. Bereridge, 1042 
Shore V. Weekly. 1022 
Short V. Mer^, 835 
Sbrewalmry Mai^pal Chari- 
ties, re, and re Shrewsbnry 
Free Grammar School, 201 
Shropshire Union Railway and 
Ctnal Co. V. Andenon, 175 



Simpson v. Robinson, 187 

Sir Henry Webb (The), 639 

Sismey v. Eli, 480 

Skarffv. Soolby, 89.1109 

Stater v. Mackay, 1081 

Siaee v. Bner, t$» 

Smith, ex p., r« Field, 1044 

, App., Her Majesty's Of- 

fioBTS of State for Soot- 
land, Reap., 713 

— « V. Capron, 147 

— — e. Dimes, 518 

*. Kanrick, 862 

V. North, 998 

ti. Oliver, 159 

V. Palmer, 94 . 

~— V. Pincombe, 91, 158 

— , John, V. Riy. On error), 
850 

V. Roberto, 40 

Smyth V. Anderwm, 211 - 
Snare v. Baker, 203 . 
SoL'Gen. v. BaOi (Corpon- 

tion oO> 866 
Sombre, Dyce,(alAnatie),fv, 

218, 657 
Soath-eastem Railway Com- 
pany V. Martin, 1 • 
Spaekman, ex p., re Agrienl- 
taral Cattle Insnnuee Com- 
pany, 75, 415 
Staple's Settlement, re, 273 
Steele e. nomer, 177 
Stereni, er p., re London 
and Soath-westem 
Rulway Metropo- 
litan Exten^on 
Act, 2 

B. KeaHng, 974 

Stevenson (In the Goods of), 
736 

r. Stickle, 1103 

Stewart, ex p., re Stewart, 581 

r. Forbes. 5, 523 

Staart V, Stoart, 904 ■ 
Stateley v. Harrison. 800 
Station p. Bament, 393 
Snrtres ». Hopkinson, 181 
Swainson r. Wrigley, 800 
Sykes, «r ji., rt Clarke, 486. 



T. 



Tamworth v. Bamsley ; Reg. 
V. West Riding of York- 
shire (Jnstices of), 511 
Tecumseh (The), 68, 131 
Templer, ex p., re Gnndry, 78 
Teversham r. Cameron's Coal- 
brook Steam-coal & Swan- 
sea and Loogher Railway 
Company, S33 



Thomas, er p., reHottb of 
Englud Joint-stock Bank- 
ing Company, 274 

Thompaon r. Universal Sal- 
vage Company, 104 

Thomson ft Baxter v. Hem. 
peiistaD.914 

Thornton, A.K.,(In the Goods 
of), 1107 

r. Knight, 180 

Thnipp V. Beveridge, 1042 

Tinkler v. Hilder, 684 

Toll V. Lee, 614 

Tooke, ex p., re Londonderry 
and Colera^ Railway Com- 
pany, 939 

Townsntd v. Deacon, 366 

Trent Valley and Chester and 
Htdyhead Railway Co., 784 

Tribe v. Tribe, 793 

IVihg, Redding, and Boring- 
stoke RaUwayCompiBy,652 

Trinity Houe at Hi^ v. Bea- 
dle, 557 

Troatbeck, ex p., and ex p. 
Walker, 157 

Tacker p. RobarU & ors., 703 

Tnlke e. Moihay, 26, 89 

Tomer v. Uerywetfaer, 68S 

ff. Nieholls, 293 

Torrill «. Crawley, 878. 



V. 



Vass V. Elflok & Bennett, 989 
Vanghan (Administrator of J. 
Vaugban) r. Matthews (Es- 
ecator of Anne Vaugban), 
470 

Vicars e. Monid, 85 
Vigersv. St. Paul's (Dean and 
Chapter of), 256. 



W, 



Waddilove v. Taylor, 1023 
Walker v. Giles, S88, 753 

». Mibte, 933 

Walter, u re Jobit.Btock 

Companies Winding-opAct, 

1848, and Cameron's Coal. 

brook Steam -coal and Swan - 

sea and Loogher Railway 

Company, 935 
Walton 9. Hoh, 355 
Warbnrton v. Fan, 528 
Ward St ors. (Assignees) v. 

Dalton, 734 
Warwick and Worcestershire 

Rattwaj Company, re, 651 



Watson ». Charlemont (Eai 
Sir W. TomiK, 
an., 117 

e- Life, 479 

Watts r. Christie, 244, 845 

V. Penny, 578, 758 

— 9. Symes, 245 
Webster Be Wife v. Ddafi^ 
635 

Weedon ». Woodbri^, 62 
Wdchnun, M., (Administi 

trix of J. Welchman), 

States, J., 388 
Westroppv. Solomon, 1104 
Whiston, Clerk, v. Rocbnt 

(Dean and Chapter of), 6! 
White e. Pearoe, 999 
Whiteway.er^., reWbitews 

1067 

Wbitmore, re, 185, n. 
Wilbyv. Elflton. 706 
Wild V. Hairis, 961 
Wili[inson e. Willatts, 37 
Willoox, re, ex p.Violett, 5i 
Willey V. South-eastern Rai 

way Company, 241 
Williams, in re, lUO 
B. South Wales Rai 

way Company, 443 
WiUis, rt, 1032 
Windsor, Staines, and Soatl 

western Railway Com pan' 

exp., re Pollock, 760 
Winn B. Fenwick, R96 
Winthrop b. Murray, 32, 95 
Wood B. Perry, 129 

B. Nortii Staffordshii 

Railway Co., 466 

B. Taanton, 954 

B, Wand, 472 

Woodbridge Union (Guai 

dians b. Colneis tc Car 

ford, in Suffolk, (Gnardiai 

&c. oQ, 803 
Woodhamsv. Newman, 456 
Woodroffe b. Doe if. Daai 

(in error), 1013 
Woolf B. Ci^ Steam-boat Co 

456 

Worthington v. Moi^n, .IH 
Wright V. Barnetrall, 1041 

B. ColU, 1006 

Wrigley V. Strainson, 800 
Wyld, ex p., re Wheal Love 

Mining Company, 133 
Wynne b. Price, 295. 



T. 

Yates p. Haddan, 331 
Yetto V. Norfolk RailwayCom 

pany, 249 
Tonnf V, Rdncock, 539 



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REPORTS OF CASES 

DECIDED m ALL 

9^ eomtp of Uqntts utOf eommon ftato» 



COUBT OF CHANCERY. 

Txx Sora-BunRK BAn.vjLT CoMMmr v. KmAk.— 
outfit. 4. 

P im uf^u m wUdk thi$ Omrt it^rfsret to ratraht an 

Attim m MaOen Acctmnt. 
TU Obmw^imt ^Oelr Lordthipt in deeidiM the Case 

9^ Tie nr Fde BsOvay Company v. Nixon (1 

H.L.€k. ]]!} rgftrfwJ to and eieplaintd. 

Thif wM aa a]ip«*l firom the deciuon of Knight 
Bhice,ric«.auoeellor, (reported 12 Jar, 10ft2). The 
Sdlowiag is the jodgment of the Lord Chancellor, af- 
bmmg Uut deciaioB, and refemd to in the notew 12 

Smart BmSjf cupportad the appeal. 
A*4*^ Gnmwoody and Tafhr^ contra. 

4— Lord ChamcbiXor. — I am of opinion that 
Oh is aat a proper oaae for an injancUon. It ia stated 
pieadings that the Company think that justice 
mK W doDe to them by the trial of the action at 
« manner so satiafactory as it' there was an ac- 
ciMt taken befcm a Xaater of the Court ot Chancery. 
Thi nny be, hat it docs not of necessity follow that 
tfai tral M the action ia to he restraioed on that account. 
Ik obaemtions of tile noble Lords in T%s TVnT Vale 
Xhfia^ CmpM^ t. Nixm (1 H. L. Ca. Ill) have 
tea nfemd to in the course of the argument aa ex- 
puaLf m opinion that accounts ought to be taken by 
« tma ti equity, when required by the parties, in au 
an 1b vhieh a cooit of law miffht direct a relerence 

9i9 Piias. Now, I apprehend that the noble Lords 
it Ibat cw-did not inteba to intimate any such opinion, 
hrt only ta exemplifr, in those observations, the very 
gnat iSfteolXf of aeanng with such cases at law. Be 
thi^ bewwnr, la it mxr, I camiot, in the case before 
me any gronnds for the exercise of the equitable 
inlBfietioa 5t this Coort. In matters of account the 
Coart of Chancery has ralee of its own ; and, although 
tke practical difficulties In proceedings at law do form 
imaleml cDDsideration in the exercise of the discretion 

the C-surt, its jnrisdiction in matters of acconnt is 
not exercised, as in many other cases, to prevent the in* 
eonrenjencw that may arise from the exercise of purely 
I^U rights, or to enrorce accounts in cases where courts 
of kv cannot enforce them. The jurisdiction is oon- 
furrent with the courts of law, and is adopted in certain 
ea«ei, because the Court of Chancery has better means 
of asmtunlitt the rights of the parties. It ia, there- 
*»e, iH^uesiMe to lay down » rule or to establish a de- 
m&m as to tiM casea in which Um Court ought to 
esaott Its jnrtsdictlon. The interests and the affldrs 

aaoldnd will be found contra^ to any such rule. 
Ia flbe pfcsevt case, I repeat, that I am perfectly satis- 
M that the action ongnt not to he stayed. The case 
k M one of account between the pti^es. The only 
appeata to be, whether certiUn payments hare 
Tm. XUL a 



been made, and certain work done. The bill is ftled for 
a discovery; the Company has all the discorety they 
require, and they pray mrther relief, apw«ntly to 
avoid payment of the claim by delay. The htO td 
Martin & Fox was sent in in October, 1847; the aetion 
was commenced In the foUowii^ November ; and thft 
proceedings at law went on until the vacation, when 
the Company filed their bill. The case of Thorpe r* 
Ht^Ate {3 My. St C. 742) is a direct authority against 
any interference of tiie Court after such deliqr. It 
would be a reproadi to a court of equity, i^ In a case of 
! concurrent jurisdiction, where a party hU proceeded 
I at law up to within a uiort time of trud, he should be 
j then restrained from going on at the application of Uie 
oppodng partv, whO| witnout explanation or excuee, 
! had permtttea the proceedings at law to go on. The 
i clrcuraManceS of this case preclude all in^rference on 
the part of a court of equity, and the motion for the 
ii^unction must he refiised, with coats. 



Uuoa. e. MAJOib— Z>«t. 11. 
Pr a tt i ee D rmnittff up Ordm^M M am Otmt$, 
The Minvtea of an Order htmng betn once tettted Me 
Jt^istroTf eanntt be altered in the Alaam of anj/ of 
the Parties interested. 
Parties nnneeessarify served with IfoHce ofMotioUt and 
onfy appearit^ to ask for Costs, wiB not JW aSowed lie 
Costs of their Appearance. 
' An order was made in this cause by the Lord Cban- 
; cellor on the Olst May, 1848, and on the I7th June all 
j parties attended before the Registrar to settle the mi- 
nutes. On this occasion a propoution was made hy 
I A. B,, the solicitor of the defendants, that certain woroa 
should be introduced into the order. This proposition 
was opposed by C. D., the phuntiff's solicitor; and, 
; after mscuaslon, was rejected by the Registrar. Sub- 
sequently, however, A. B., in the absence and without 
I the knowledge of C. D., induced the RegUtrar to per- 
I mit the insertion of the words proposed, and the order 
' then went through its regular prooeas and was passed. 
C. D. theu discovered the alteration, and immediately 
moved, on behalf of the pluntifF, before the Lord Chan- 
cellor, to have the words inserted struck out ; and the 
Lord Chancellor, on the 9th August, 1848, ordered ac- 
cordingly. The notice of motion also asked that A. B. 
might pay the costs of the motion. This portion of the 
motion, upon the application of A. B., stood over, and 
now came on for ai^iment. 
RoU and Hislop Clarke, in support of the moti<Hi. 
l^iaart, J. Parker, and TonliMn, for A. B. 
The Iard Chancbllor, after going through the fiwte 
of the case, said— I am not disposed to carry the matter 
further than necessary to do justice between the parties, 
and therefore think it will be safer to put it on this 
bread ground, that when onoe an alteration has been 
settled hy the Registrar, if one party thinks he can get 



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a 



THE JUBIST. 



it altered, he can onlr do bo by bringing all parties be- 
fore the Registrar. It is not justifiaUe for any party to 
go behind the back of his opponent, and by a statement 
(true or false is immaterial) obtain an alteration in the 
oxder^ of which the other party has no notice. With- 
out, uierefore, inquiring how tne Irregularity oecnrred, 
the order has been restored to the porition in whicli it 
stood: and, being satisfied tiiat tnis irregularity has 
been brought home to the solicitor who obtained the 
alteration, it is a matter quite of coarse that the party 
applying to hare the order restored to its orij^nal posi- 
tion should be paid his costs, and that the other party 
should pay such costs to him ; that is, they must be 
paid by the solicitor who has been in fault. 

Matins and Welford^ for the defendants, the clients 
of A. B.» who had been served with notice of the motion, 
appeared and asked for their costs. 

Lord Chancellor. — The costs of these parties must 
be paid by themselves, as there was no necessity for 
them to appear. They only ^pear to ask for coats*. 

Re X/ONDON AND SOUTH-WKSTKRN RaILWAT MbTBOPOU- 
TAN ExTEHSIOK ACT, ftT parU SlETBltS.— 2>0C. 21. 

Zmdir Cdamm OoiuoUdation Act, (8 Viet. c. 18)— Cats 

—Lien.' 

Monw had been paid into Court bva Railway Company 
hmre entering upon Landa. subsequently had 

the Lands vatuedf and paid the Price at vMeh tkp 
were valued to the Landowner: — Hetd^ on Petition 
the (kmpax^ far Pigment owt of Court <f cA« Moniesy 
that the Landowner had no Lien on such Monies for 
hit Costs* 

This was an appeal from the dedslon of the Vice- 
Chancellor of Enriand, (reported 12 Jur. 238). His 
Honor there hela that money having been paid into 
coart by a railway company before entering upon lands, 
and the lands having oeen subsequently valued, and 
the valued price paid to the landowner by the company, 
the luidowner had a lien on the monies in court for his 
costs. The Company now brought the matter before 
the Lord Chancellor. 

JS^uart and J. H. Law^ for the Company. 

The SoUcitor-Chneral and Taylor, contra. 

[Sects. S4, 80, 86, and 87 of the Lands Clauses Con- 
solidation Act were refarred to^ and also the case of -Er 
parte The Great Nbrlhem Ratlway Company, (12 Jur. 

The Lord Chakcbllor conridered that there was no 
lien for costs under the 80th section ; that, on the pre- 
sent occasion, which was a petition by the Company 
for payment out of the monies in court, no order could 
be made for the payment of costs unless there was a 
lien ; that the directions of the act were clear, the 8fith 
section providing for the payment into court of the 
v^ue of the land in specified cases, and the 87th section 
providing for the payment out of court of that money on 
the performance of certun conditions by the company; 
tha^ on ih» present petition, the eonditfons having been 
performed, the only question was, whether the Com- 
pany were not entitled to have the money, and on this 
point the provisions of the act were clear ; that, if a 
primli facie case could be shewn for charging the Com- 
pany wiUi costs, the Court might perhaps direct in- 
quiries before parting with the fund, but nothing of 
that kind appeared here; that, accordingly, the provi- 
sion as to costs appeared to be introduced into the Vice- 
Chancellor's order without anthority, and the order 
must be, therefore, made simply for payment of the 
money out of court. 



* See Ttmpleman v. Worrirngton, and Heneage v. AMn, 
(1 J. & W. 377) ; Gwrsg t. WHUimgham, (1 T. ft R. i05) i 
BoB^ord V. WiaUt (2 Bear. 



VICE-CHANCELLOR OF ENGLAND'S COURlj 
Hawkins p. Hamerton. — Nov. 21. | 

Willy Construetim of— Survivorship— Period for Din 
ston — Pet Stirpes, J 

A Testator, hy his WiU,aave Le€uehold Proper^ to M 
Son A.; but, in ease he Aould die without Issue, &j| 
Leasehold Property was to form Part of his residua^ 
Estate, and be divided amongst theChiulrenof ^iht 
Daughters, as thereinafter mentioned. He thtngave 
Income of his residuary Estate to his Wife /or lAf^ 
and after her Decease he directed his Trustees to pt 
the Income as follows: — "Amongst all my Childrs 
the said A. and my said three Daughters, B., C, oi 
D., or such of them as shall be living at the limeof i 
Death of my said Wife, m equal Parts, Shares, 
Proportions, duritkt their neOural Ltves.** 
from and mier the Decease of n^ said Son and. 
ters, then fwill and direct that the u^iole (f mgA 
sidue and Remainder of my Estates, with all Accus 
lotions thereof, shall be paid and divided amongst 
and evety the Children of my said Son and Daug^ert 
in equal Shares; and in case any of my said Son am 
Daughters shall happen to die without leaving Issuef 
the Share of him, her, or them to go and be cUvidea 
amonqst the Survivor or Survivors, and their Issue, in 
the Hie equal Parts. B. died in the Lifetime of tht 
Widow, leaving Children. A.,C., and D. survived thi 
Widow, and then D., and afterwards A., died; A, 
without leaving Children, ondD. leaving Children:— 
ffeldf that the C^iidren ef Bt were entitled to the sam 
Share as B. would have been entided to had she sur- 
vived the Widow, namely. One-fourth; that, upon A'l 
Death without Children, his Share became divtsaiUintt 
Thirds— One-third to the Children of B., another One 
third to the Children of D., and another One-third U 
C.for Life, Remainder to her Children; and that € 
was only entitled for Life to her One-four^ of the Re- 
sidue and her One-thira of A*s Share. 
Charles Hamerton, by his will, dated 30th July. 

1799, gave to trustees therein named all his real anc 

fteraonal estates, directing them to sell and dispose of 
et, set, manage, and improve, his freehold, copyhold 
and personal estates, and to invest the proceeds arisiof 
therefrom in their names in Government securities, an< 
to payout of the rents, issues, profits, dividends, annua 
and other accnmulaUons of his said real and persona 
estates, to his wife, Ann Hamerton, for her life, ai 
annuity of 4G0j. He then gave as follows : — *' I aht 
give and bequeath unto my son, Charles Hamerton, al 
that leasehold estate which I now bold of and under th< 
corporation of the city of London, situate and being a 
'Wnitefriars Dock, &c.; but in case mv said son siial 
happen to die without issue, then I will and direct tha 
the s^d leasehold premises shall revert to my said trus 
tees or trustee for the time being, and be taken into am 
be considered as part of my residuary estate, and b 
divided amongst the children of my three daughters, a 
hereinafter mentioned." He then gave unto each of hi 
three daughters, Isabella Killick, Matilda Hancock 
and Mary Hamerton, for their sole and separate use, ai 
annuity of 300?. for their lives. " And from and afte 
the decease of my said daughter Isabella, I will and direc 
that the principal monies from which her said annuit; 
of 300/. snail arise and accrue shall be paid and divide< 
amongst such children as she may have by her presen 
husband J. S. Killick only, in equal parts, shares, an< 
proportions, as they attain their respective ages o 
twenty-one years. And from and after the decease o 
my said daughter Matilda, I will and direct that th 
principal monies from which the said annuity of SOOi 
shall arise and accrue shall in like manner be pidd am 
divided amongst such children as she ma^ have by he 
prasent husband, Samuel Hancock, onljr, in equal ports 
shares, and proportions, as they attain the respective 



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THB JUBIST, 



8 



•g«f «f CnnQr-^Hw jesn. And from and slier the de- 
ctaae of my md daughter Haiy, I will and direct that 
^he ptiocnal monies from which the said annaity of 
900L aball aecnie or arise shall be paid and divided 
mougst all and ereiy the children which she may have 
W iDV frtnre husband or husbands, in equal parts, 
vans, and proportions, as they shall attmn their re- 
spertin ^ea of twenty-one years; and in case she shall 
feafiwo to £< withoat iasne, then such principal sum to 
^cfindedamoust the children of my son Charles and 
itwgktm isabeUa and Matilda, in equal parts and 
m their attuning their said ages of twenty-one 
And it isfarther my will and mind, and I hereby 
dhei, that from and after the decease of my said dear 
wiky Ann Hamerton, the said annaity of 450/. so 
givm aod bequeathed to her dnring her natural life, 
*M akm all the rest, residne, and remainder of my said 
ml ad personal estates, of what nature or kind soever, 
Mt hemn before dt^Moed of, and which my trustees and 
exeestiHs shall and may be possessed of by virtue of the 
tmt hmbj in them repoaed, and all accumulations 
Ibeno^ iball be rested m the funds of or in Great 
BntiiiiL, or placed oat on Government securities at in- 
taot; nd that the fall clear dividends, interest^ or 
inittee Owreot dkoU be paid tmd divided amongtt all 

ZiSdrmy Ae tmd CharU$ HatnerUm, and ngr taid 
wdtmken, ItubeUa, Matilda^ and Mary, or tueh of 
imntmlie hwimg at iho time of the death of my taid 
■S^n tfmiporttf Aarea^ imd proportiont, during their 
Uvtt^ by even quarterly payments; but the 
Aan aad iuterMt of my said daughters to be in nowise 
nUeet ar liable to the debts, control, or engagement 
of their present or any fatore husband. And from and 
^Ar At deente wuf said ton and daughtert, then /will 
itidvett, that tie whole of such residue and remainder 
tfmy ettata, witk aU aeeumtdationt thereof, thall be paid 
mi£tidei antomgtt all and every the children of nur said 
fcs Aji> OAceRTKBs, in equal parts, shares, and pro- 
I tti sBSL And in case any of my said son and daugh- 
tmAaH hippen to die withoat leaving iasne, then I 
^nH mi £rMt, that the legacy, part, or aharea hereby 
pfm wai bequeathed to nim, her, or them so dying 
vitimt iKae, shall go and be divided amongst the 
Mill TOT or sarrivoTS of my said children and their 
ime, in the like equal parts, shares, and proportions." 
Tbe testator died in the year 1800, leaving his widow, 
Am Hanerton, his son, Charles, and his three daugh- 
tm, r< i Mla , Matilda, and Mary, (since married to 
SA), him nirviring. Isabella ( Mra. Killick) died in 
tbe lifetime of her mother, namelv, in the year 1804, 
learinjr Bereral children by J. S.' Killick. In 1814, 
Aaa HamettoD, the widow of the testator, died ; but, 
Ae Rndnry property of the testator not having been 
M fri c it to pfodace the annuity of 4601., she had been 
fer amiiuty partly out of the principal ; and, at her 
*«**b, the residue of the testator's estate consisted of 
X3U. 13e. IdL, 3/. per Cent Consols. On her decease, 
the iaeosae of this sum was paid equally between the 
tHtatof's son, Charles, and his two daughters, Mrs. 
flancock and Mrs. Holt. Mrs. Holt died in the year 
JfflS, leanng several chitdreo. Upon her death, it 
bring considered doubtful whether her snrvirtng bro- 
ther and sister were or not entitled to receive the entire 
meome the reaidoary estate, it was agreed, that one- 
thirdofdie income should be allowed to accumulate, 
and it now consisted of 007/. J&. 7d., 3/. per Cent. Re- 
daecd Annuities. Charles died without issue in the 
year 1&44. Mrs. Hancock was still living. This suit 
w insatnted by the children of Hi-s. Hancock, for the 
^yoae of hanng the trusts of the testatoi's wilL so 
was coDceriwd his residaary estate, carried intoemct, 
nd the rights of all parties dedared. The questions 
were, first, whether the entire income of the re«due 
'na to go to the survivor of the testator's children 
(■a.Hsieoek) for her li^ or what became of the 



income of the share of a diild dying and leaving issue; 
secondly, whether all the grandchiklren of the testator 
were entitled to take, or only the children of those 
children who survived the testator's widow, and took a 
share in her annuity, and so excluding the children of 
Mrs. Killick, who died in the lifetime of the widow; 
and, thirdly, whether the gnndchildren were to take 
per stirpes or per capita? 

Haddon, ( in the absence of Bethel), for the plaintiff^ 
contended, that, Mrs. Killick's children were excluded 
from taking any part of the residue; and that the 
children of those children who survived the widow of 
the testator were to take per stirpes ; citing Brett r. 
Horton, (4 Beav. 238), and Am>u t. M^Hih, (1 
DeG.&S.3W). • 

Hodgson and Widmt, for Jemima Hamerton, the 
representative of Charles Hamerton, the son of the tes- 
tator, and Matilda Hancock, the surviving daughter of 
the testator. — We submit, on the part of Mrs. Hancock, 
that she is entitled to the entire interest of the residuary 
estate of the testator for her life. The words of the 
gift over to the children are, And from and after Ihe 
deeeate" (in the singular number) " of my said son and 
daughters, then I will and direct, that the whole of 
such residue shall be paid and divided." This eri- 
dently points to one diviAon of the entire reddue, which 
is to take place after the death of the survivor. This 
either made the children of the testator who survived 
his widow joint tenants, or it raises cross renudnders 
between them. (MaleoUn T. Martin, 3 Bro. C. C. 60; 
Pearee v. Edmeades, 3 You. & C. Ex. Cas. 240 ; Athl<^ v. 
Ashley, 6 Sim. 358 ; Tueier r. Juries, 3 Bac. Ab. 681 ). 
The only authority amunst this construction is Willetr, 
Ihuglas, (10 Beav. 47); but the decision there turned 
upon the particular terms of the will ; but here there 
is nothino; said but " from and after the decease of my 
son and daughters." It then goes to the children as a 
class; and, according to the authorities cited and those 
collected in 2 Jarm. on Wills, p. Ill, Mrs. Hancock 
must take the whole for her life, and uien the children 
per capita, 

JtoU and Lewin, for the children of Mrs. Holt.— Oar 
first proposition is, that Mrs. Killick's children take no 
interest whatever in the residuary estate of the testator. 
First, there is an annuity given to the wife for life, and 
after her death to the testator's children, naming them, 
" or such of them as shall belivii^at the time of the death 
of my said wife." This is a gift only to such as should 
be living at the death of the wife ; and Mrs. Killick 
having died in her lifetime, the will must be read, as to 
that clause, as if Mrs. Killick's name was struck out of 
the will. The testator then goes on to direct, that, 
upon the decease of his son and daughters, the residue 
is to be divided amongst tiie children of his sud son 
and daughters." This expresnon must refer to the last 
antecedent — ^that i^ the children of such of his children 
as should be living at the death of his wi&. To hold 
this a case of joint tenancy or survivorship would not 
be giving effect to the laugnage of the will. If yoa 
find that the testator has indicated an intention in one 
event to give an interest by survivorship, this will ex- 
clude the implication of survivorship in any other event. 
In no place does he say, that, in the event of any of his 
said son and daughters dying without leaving issue, the 
sliare of such person is to go to the survivor or sur- 
vivors of them. This brings us to the question — is this 
an intestacy as to the interest of Mrs. Holt's share 
during the interval between her death and that of 
the survivor, or do Mrs. Holt's children take imme- 
diately upon her death i We submit, that precisely the 
same reasoning obliges the Court to come to the con- 
clusion, that the testator meant, in one event, that of a 
child dying without issue, to give that share to be di- 
vided lietween the children of the survivors per capit^ 
npon the death of Uie snrriror; but, as to the share or 



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a child, who aurrired the widow, dying leaving issue, 
tiien to that iasue per stirpes. We sahmit, then, that 
Uiere was no intestacy, and that the share of each 
child dying leaving issue was divisible immediately. 
The Court^ in these cases, are always in favour of a 
distributive and not a coUective division. Makolm v. 
Martin is the only anthoritjr of any importanee that 
has heen cited against our positjou^ but the distinction 
between that aiw the present caae is very dear. There 
the gift was to a elass of grandchildren, and was, in 
effect, a mft to 6. and L., and on their death to all the 
grandchudren of G. andL.; so that until the death 
both of G. and L. all the grandchildren could sot he as- 
oeHaiued. ( Tmien v. Paxriu, 2 S. & S. 383 ; Willts 
T. IhuglaSf nhi sup.; 4rrou> v. Mdluhy 1 De G. & S. 
SM). There ia no survivorahip here by force of the gift 
to tne children ; if there were, there would be survivor- 
^ip whether the party died with or without issue, and 
the subsequent gilt to the survivor or survivors, in the 
event of any one dvin^ without issue, would have been 
mere surplusam ; but it is clear, that there is not to be 
survivorship where tha party diealeaving issue, bat that 
person's share is to he divided immediately between his 
children. {Brm v. Borlm, 4 Beav. 289). 

•Tome Ptriter and Pob, for the efaUdren of Mrs. Kil- 
Eck.— We submit it to he dear, that Mrs. Killick's 
children are not to be excluded bom taking a share in 
the residue; but how th^ take may be doubtful. 
There is no contingency in the gift of the residue to the 
children of the testator's son and daughters, denoting 
that the taking is to depend upon their parent having 
enjoyed a share of the annuity. If, indeed, the gift were 
to the children per stirpes, ^ere might be some ground 
for argument ; but it is clear, upon the authorities, that 
they are to take per. cwita. It would be too much to 
cot down the gift to the children of the testator's eoil 
and daughtoa, to mean the children of such as should 
BDrrlTe the testator's widow, merely by the phrase 
"children of my aid son and daughters :** " SMd son and 
daughters*' must be taken- to mean those whom he had 
mentioned just before, nominatim. The next question 
ia, what is to he done with the accumulations on Mrs. 
Holt's share since her death 1 And we submit, that 
there is an intestacy as to that. There was but one 
•vent upon which the survivors were to take, namely, 
upon the death of a child without Issue. 

JB^eli, in reply. — The plaintiffs are only interested 
in resisting one claim that has been made, namely, that 
by the children of Mrs. Killick. Upon this pomt, he 
vigeA the same aiKuments as had been ussd by the 
counsel for Mrs. Holt's diildren. 

VicB-CHaHOBLLOB.— The testator first ^ves an au- 
noity of 4502. to hia wife; then he ^ves her varioas 
spcofic chattels; then he gives his lewehold at White- 
Srtars to his son ChtU'Ies, and says, But in case my 
said son shall happen to die without issue, then I wiu 
and direct that the said leasehold premises shall revert 
to my said trustees or trustee for the time being, and 
be taken into and be considered as part of my residuary 
estate, and be divided amongst the children of my three 
daughtenL as hereinafter mentioned which I point 
oat, as shewing that the testator evidently contem- 
plated that his residuary estate should be divided 
amongst the children of his three daughters, or, at 
least> that the children of his three daughters would 
Mie some interest in his residuary estate. He then 
|^T«s an annuity of SOfH. to Isabella; another, of the 
same amount, to Matilda; and imoUier to Mary, who 
was at that time nnmarried. Then he direota, that, 
nfter the death of each of his married daughters, the 
windpal nKmies from which her annuity of 3001. 
would arias should be divided equally amongst her 
idiildren, as they should attain twenty-one. But, as to 
Mary's annuity, he says, "And mim and after the 
deoMN «f ay mii dai^i^tar Haiy, I wiU and diiMt, 



that the principal moniea from which the said annoi^ 
of 3001. soall accrue or arise shall be pud and dividet 
amongst all and every the children which she 
have oy any future husband or husbands, in eqna 
parts," &c. "And in caae she shall happen to dii 
without issue, then such principal sum to be divide) 
amonnt the children of my son Charles, and daug;htec 
IssheOa and Matihla," &c. It Is dear, from thia, that 
In remct of the fund producing Mary's annuity, if ab 
should die withont leaving children, (for it is reason 
able to conatrue " issoe** as meaning " children") 
it is to be divided amongst the children of the brothei 
and sistefs. Tlien comes the residuary gift to bis fou 
children, or such of them as should oe living at th> 
death of his said wife, daring their natural Uvea. I 
seems to me quite phun, upon this, that no one o 
the four children could be said to take any intmst fi>] 
life in the residue until that one survived the tertator': 
widow. Then he goes on: — "And from and alter thi 
decease of my said son and daughters, then I dir«et thi 
whole of sudi residue to be paid and divided amonga 
dl and every the ehUdzen of my add son and dands 
ters." Now, these wordau of themsdves, do not do 
scribe only the children of such of the son and tfarei 
daiwhters as might then h^pen t« be living at thi 
deaUi of the testatot's widow, but it is a getwral e& 
prefeion of what should be done with the whole of tht 
residue after the decease of all his before-menUowi 
children. I cannot but myself think that the woidi 
do of themselvee naturdly import, that the children a 
Isabella, (Mrs. Killick), who was not living at tti( 
death of the mother, if she diould happen to ban 
children, should take suoh diare as Isabdla hersel: 
would have taken, if living. Tlien the testator goo 
on : — " And in case any of my said son and daugmsn 
diall h^pen to die' without leaving issue," he giv« 
his or her shue to be eqnally divided amonnt tht 
survivors of his duldrai and thdr issue. This is i 
flift for the benefit of the testator's children and thdi 
bsue, and in case of any of them not leaving issuO; 
then to the survivors and their issue. What are thi 
events wliich have happened 7 Isafcdla did not surnvi 
the mother, but left children now living. It seems U 
me that these words, speaking of and pointing to sur 
vivorship, mean not to refer to the case of the survivor 
ship as between the children and the testator's widow 
but to ibe fiEu:t of the children, some leaving and somi 
not leaving issue. My notion is, that what the testata 
meant was, that, so soon as tiie fund should be divided 
theie should be a retrospective division ; and the con 
seonence will be, that, in accordance with this, whid 
I think is the true constntotioi^ I have no difficulty ii 
saying, tliat, in the events wuch have hsppened, tb 
cmldren of Isabdla should be entitied to one-fonrtl 
share. In the evmt of the son dying without issue 
the leasehold estate is to go among the children of tii< 
three daughters. I think there is quite enough npoi 
the whole of this will to shew, that the children o 
Isabella were to take such shsire as Isabella heiael 
would have taken If she had survived her mother. Ii 
this ultimate gift of the leasehold, it Is given as part o 
the residue ; but it is clear that dl the children of th 
daughters are to participate in the leasehold; aa< 
tiiough, in the ultimate gift of the diare of a chili 
dying withont iara^ he has used the words *' sarriror 
or survivor," I ^ink the testatw meana " others." '■ 
am of opinion, that the children of Mrs. KiUidc sr 
entitled to one-fourth of the residue. Hy resMm fo 
thinking that die children of children take per stirpes i 
founded upon the clause, " And in case any of my sail 
son and daughters shdl happen to die withont issue,* 
&o. Charles's share has become divisible, and it goa 
over in thirds: one-third to the chlldrsn of Isabella 
one-third to the children of Mary, and the other one 
third to Matilda for life,, and then to her cbildsia 



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THE JURIST. 



Ilrtilili(irw Hiiiiiwfr)i»e»tttlBdoplyto> 
V karawn and im om-thud <ii Cbu-lws al 



HfeinUntt 



SrCVABX V. FOBSHS. — DfC 11. 

A J>mm Aelmrtd Umt hath ParUes emamUed that ftle 
Otmrt timid dsatU witMout dinctmg am lame. A 
prtmmUd, Uatimf Aat cUre Word* were 
mmettd, mtd fn^m^ tiat tkue Wmd* 
\Ummi«^mttket0rdCkmi€eUarkaddeeiM 
«i( OmpmelmiM «« Jlfmml:—Hdd, tkal mA mm 
MaFmmmMtmttbtmmUmPemm;aitdmlnlkgtj 
Cit CSnmrnttrntemf Ote IMerm cvpk ml to be 



At the iMftring of thia 4mm, lOtfa April, 1848, his 
Bow OMfa the JolhHriag deem The MtrtfaM h«v. 
laf SMMted that iht mattwre a qneitiDn m this canae 
*hU he beaded hy tfaa Court, without diieetiBg an 
■ML Ok Cwt doth ordu: that the plaintiff's Mil do 
^mi iKmIiiiiiI out «f this OMirt with oosta." From 
Ms decirioM the phustiflF aroeMed. It viR be Been 
takthascport, (U Jar. 968% thai the Lord Chancel- 
krvaa<tf ephdattf^Mt thadeovee could Botbeapttealed 
faaa,»hamighBCBteka&b7«0Ment. ThepIalMffiiow 
i a yi&Cww, «ta.tiM that the petitftttM did not 
,aBl,iK*aMth« Court dhauld vefnse to decide 
m qwilioB ia this oaae without directii^ 
■e, Am Ceart ahooid be prsoladed from directing 
■i^ or froaa taldag any otiiet ooune whifdi 1h» 
aa^hfc CMMsder to ba necessary in that iwhalf, 
Ithat hs did Bot aenaeat that be shoold be debairtd 
B baring tha amid caue reheard before the Lord 
r; asd atatiBg (hat it was Ihrongh mistake or 
ce thai tha decree was drawn ap in aaot 
t— as BB«M, by peeeilnlity, be oonatrued to express 
Ifcit sagr sach eoaiaMit bad bm Biren. And the peti- 
Mssfn^wd that tha airor lietafce in the said decree 
he aanectad, by strftiu eat the words, '*tbe 
|MhBhmBff«0iMaited that tha mattsn ia qustton 
m1h» — ge aha«M be daeidsd by the Court without 

* BcJ^ Mr. Bell was twioe oonsaUed Dpoo the oonstnw- 
Ifaa af Ae ^wve wiB. His ae»md (^iaioot to far as it related 
to fte ^wtfisD now allied, was as follom : — 

" 1 ttisk it im open to snaDteot, that the testator 
Art the ckadteo of Isabdb Killick iboald beoosae, on the 
hA gf ttdr grandaMtber, entitled to such ahsre of the re- 
dlseHftdmoCber, if living, would hsre been entitled to, 
ai lbs any otiier child died leanng iasee, as Mn. 

Mdk, Wr rtiMiiii be e — a e eotttled to ber alure of ths restdns ; 
at Coarts hMe Tuiod ao from the woida, to ghre effeot lo 
1** —y he wmfuumii to be a reseaBsUs intsnl in fbvear of 
Mhm tmik lhar vaw. 1 widi As ^^ahm of the Coort 
wMteMbasi nhliMiToB tins sawcflss the otter poieiB; 
tat 1 Asnk tbs a at sinr baa not so eaq>r c aaed Unumf as to 
wfch Ife Csnrt to a d e p t thia conatonctiont bst that, aoDud- 

Zto As weria of the still, the three otuldren of tbe testatv 
sonifcd tbs mother became entitled to the whole income 
tm tke rssidw, and that, on the death of Mrs. UoU, her 
ihaceaf tbe k^oiBe falb into tba residoe ; and that, after the 
ofdl the cSvildccn of testator, then tbe whole residoe 
h dhpjAla aawftsi all the granddiildren, per capita, and not 
far slirpn. Bat I think, contrary to what I did wben I 
ante 1dm fa s i u oponioo, tbst, after the desth of their imcle 
■d saias, Ae ihiMii ii of laab^ may claim, and are entitled 
ta a AsBC «tf the reaidoe. If t m^ion was fovaoed en the 
saMsa «f ^dtaliaa of iMbeda's SBBottr toher ddldren, 
sad m. ihm, that llw wosds ' his aidd sen sod daagfaian' 
sffSHsd to refer oolj ta these who were living at the dwth of 
as mat's widftv. Bpt, an lefierTing to the fongaer jvurt of 
4c vO, whcR be Jiifpaea of the Whttafrisrs ertate, if his 
ssa dhs a i t h s ia ime, it ia to be conndcred a part of hia 
■aBdsHj aatats, and be dirided asoongst the children of his 
ttne dan^tes, ss tberchMfter aisntiutsd— that is. withost 
«f erfsreaee wbettsr Om^ sv*ired tbtSt mothsroraot, unless 
Ast is to be infened froaa the srocds * as is thndnafter Bsen- 
*emif wlpebitwoaUbatoowid^do. 



diraetiug aa fsaae,** and by insertiiig in the plaee 
thereof, ''the parties not awing for an iGBuey Ii( 
SBpBort of tbe petition, the solldtor to the plaintiff 
filea an affidavit of Ihe words used In court, some 
which were as follows: — Fifes-CftoiMeAer. — There isona 
thing wfaldi has struck me all along: this is a mere 
question of fcct. Of course the parties do not object to 
my determining the fact, instead of sending it to b« 
trwd. filr. J. Parker^ counsel for plaintiff.— I thlok 
that is the wish of bo^ parties, certainly of the plain- 
tiff. Mr. LemUy counsel for the defendant. — entlrriy 
concur.— Subsequently, hu Honor said, " The partM 
hare, very unhappily for me, resolved that I shall giv« 
my opinion upon it without sending the matter to a 
jury, which, I confes^ I think womd hare been tha 
better way; oecanse, if I do not send it to a jury, and I 
give my opinion, the parties being dissaiiefied, tlie first 
thing that would be done upon an appeal would be to 
send it to a jury. Let the parties Just coo^der this." 

J. PariWf for the petitioner. — The Lord Chaneellof 
reads the decree as expressing a consent, which was not 
the intent and meaning of any of the parties, or of youz 
Honor. He eonaiders, that, by that consent he b also 
honnd, and «nabl« to dhrect an isme. The consenit wo 
gave is net that which ia caressed on the decree, and 
we 00 me here to hare It rectified by petition, which if 
the proper course. The 4Mh Order, 1828, as to clerical 
errors, was nserriy aiGrroatory of the practice: thera 
are aAiundance of cases to shew, th^ errors in decrees 
may be rectified on petHum. (See Dan. Ch. Pr. 1011 ). 
Though we asked your Honor to decide it, etill it was 
perfectly open to your Honor to reAise so to do, and 
to direct an issue, whether the parties consented or not : 
their eoneent is immaterial. The parties are altwethet 
surprised at tiie construction put upon the decree, 
which has been construed to imply a consent altogether 
different from tbe consent whicn was really given : wo 
merely requested the Court to decide it ; and from what 
your Honor then said, it is clear, ttut your Honor 
thought either party might, on appeal, ask for an issue. 
I admit, however, that it would be a breach of faith In 
either ^u^y ao to do, and I should not ask for an iasuo. 
There is no other entry in the Registrar's l>ook of any 
consent having been given in this cause. In Morris r. 
i>aeM,(6 CI. & Fin. 103), after an unsatisfactory issue, 
both parties agreed that the papers should be laid before 
the CbanceUor, and that he should deude. On an 
appeal to the House of Lords, the respondent objected 
that the decree had been by consent. The consent was 
not mentioned in tbe decree in that ease, and the Houae 
of Lords refused to entertain the objection. We submit 
to your Honor, that it was nnneoeesaiy to mention the 
consent in this decree, and, as the mention has unezp 
pectedly placed the plainraRF in a diffienltr, the decree 
ou^t to be rectified hy itrikbg it out. The agreement 
between the parties is not like an agreement to refer 
matters to arbitration, but one which leaves it entirely 
open to the Court to decide the question or not. If the 
words *' in cose the Court should think fit ^ were added, 
it wffnid express the meaning of the parties and of the 
Court, and would relieve us from the difficulty. 

A, S^hy with J. Parker. — The construction we al- 
ways put upon the consent was, that it was a consent 
that the Court of Chancery should decide, not merely 
your Honor. That left it open to us to apneal to an- 
other branch of the Conrt, bat did not bind tnat brandi 
not to direct an issue. It was alwava the intentitm of 
either party to appeal if beaten, and certainly neither 
would have given any consent which would prevent it. 

Bethdi and £ew£t, for tiie defendants, not heard. 

yicE'CHAifCEi.u>B. — ^Mr. Bethetl, I shall not trouble 
you to answer this, because it appears to me that the 
petition is altogether wrong. If there was a clerics} 
error, of course it would be corrected at once, unleap 
some good leason waa asrigned ttiat it should not be. 



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6 



THE JURIST. 



Bnt it appears to me that this is, ia effect, an attempt, 
by mere petition, to alter the whole of the decree ; for 
there really was no mistake — it ia quite evident, from 
what has taken place in court to-day, that there was 
no mistake. The decree in this purticular caae was 
written and delivered by me to the Registrar, after 
having been read out by me to the counsel present 
in court. Now it appears, that, at the time when the 
decree was pronounced, no objection was taken, nor 
did any objection occur to counsel till lon^ afterwards, 
nor, as I understand it, would any objection have oc- 
curred to counsel, unless my Lord Chancellor had ex- 
pressed an opinion, when a petition of refaearinK was 
Drought before him, that a certain consequence flowed 
&x>m the decree. Then is not that the clearest admis- 
aon that there was no misunderstanding? The affidavit 
seems to me to be a very fair representation of what 
passed in court, and it amounted to this — not merely 
that the parties consented, but they actually both re- 

? nested that I should do that which in fact I did; and 
must say tiiat it would have appeared to me to 
have been an extremely improper and uncandid course, 
after I had heard the parties so long as I did, and led 
them into a belief that I myself should decide the sub- 
stantial point, to have come down to court, and said, 
" Notwitnstanding all that you have urged me to do, I 
shall send this case to an issue." I thought that that 
was an indecorous course to take; and, therefore, I 
decided it according to what I tliought was the honour 
of the transaction between myself and the counsel at 
the bar. My opinion is, that I am not at liberty to 
alter Uiis decree; in the first place, because I am not 
at liberty to alter such a decree in a substantial form, 
where there ia no clerical error, on a petition ; and, in 
the next place, if the question turned on how the decree 
ought to be altered, my opinion is, that it would be 
almost erroneous In me to alter it in the manner in 
which I am requested to alter it. I should be giving 
it a different form and a different effect from what I 
intended it should have; and it seems to me, that when 
I dismiss this petition with costs, as I intend to do, 
there will be an appeal to the Lord Chancellor, and he 
can determine, when he hears counsel on appeal from 
this order, whether this order is wnnig. So let the 
petition be dismissed, with coats. 



COUBT OF QUEEN'S BENCH.—Mich. Tjcbh. 

Reo. 0. Booth,— iVbv. 13. 
B$ Seel. 3 o/^, 6^6 Vict, e, 109, the InJiabitanU it* 
FeMty mail make out a List of Mm qualified and 
UeMe to eerve as CorutableSf out of whicfif by Sect. 11, 
. ^e Justices shall choose a su^dent Nmta&r ofCon- 
Stabies. By Sect. 12, it is ^vtded, that if any qualified 
Pet'son, chosen as aforesaid, shall be xmwilling to serve 
in Person^ and shall find a Substitute, the Justices, if 
they approve of such Substitute, shall cause the Oath to 
be administer^ to him : — Held, that the Substitute need- 
not be on the List made out by the Vestry. 
Semble, that the Substitute need not hatie the Qualification 

required Sect. fi. 
Quo Warranto lies for the Office ofO»utable. 

Rule, calling upon the defendant to shew cause 
why an information in the nature of a quo war- 
ranto should not issue, calling upon him to shew by 
what authority he held the office of constable of the 
township of Towneley, in the West Riding of York- 
shire. It appeared from the affidavits upon which the 
rule was obtained, that, at a vestry meeting, a list of 
100 persons, qualified and liable to serve as parochial 
constables, was prepared, and that, at a subsequent 
meeting of the justices of the West Hiding, in special 
petty sessions, for the appointment of parochial consta- 
bles, that list was produced by one of the overseers, and 
tiie justices chose out of it thirteen persons. It was 



usual for the justices to appoint one of the parsons s 
selected to be precept server, to which office certal 
emoluments were attached. Upon the occasion in qnee 
tion, the defendant, Joseph Booth, attended at the spe 
cial pettv aesrions, and recommended the justices t 
choose Mr, Peter Courtenay Clark, whose name was ii 
the list. He was a person of promrty, and one of th 
justices observed, that it was not likely that Mr. Clarl 
would serve ; upon which the defendant said, that In 
had arranged with Mr. Clark to be his deputy; and hi 
was thereupon chosen to be constable, and appointet 
precept server. The affidavits in answer stated, tha 
the defendant was assessed to the rate for the relief o 
the poor at 20/. a year, and was otherwise qualified 
within sect. 6 of sUt. fi & 6 Vict. c. 109. 

Knowles shewed cause. — The fith section of stst. 6 & 
C Vict. c. 109, for the appointment and payment ol 
parish constables," states the only qualification requires 
m persons for serving the office <n constable. The 1 2tli 
section, which allows peisnis to find substitutes, doei 
not require any qualification in the substitute, only 
that he be approved by the justices. The defendant 
however, was qualified, and liable to serve. The pro- 
viso of sect. 3 anewa, that persons recommended the 
vestry, though not qualified, may be appomted. 
{Coleridife. J. — By sect. 8, the list prepared by the 
vestry shall be fixed on the door of every church and 
other place of religious worship ; if any person has a 
right to appear before the justices and object to the ap- 
pointment of a person on the list, the appoint- 
ment of a person not on the list excludes the op- 
portunity of objecting.1 The list lureed to at the 
vestry is not a Ust of aU persons qualified and liable to 
serve, bat of a sufficient nnmlmr, being the number 
mentioned ia the precept of the jiutices issued in pur- 
suance of sect. 2. [Uoleri^tJ.—Tlwn. every pa- 
rishioner has an opportunity of seeing from wnat 
body of persons the constables will be appointed. 
Wightman, J. — I do not see what ia the object of re- 
quiring that the substitute should be in the list.] The 
I2th section provides that the service of a person, as sub- 
stitute, shall not exempt him from being sooner chosen 
to serve in his own person than otherwise he would have 
been liable to. [Coleridge, 3. — In that section quali- 
fied persona are spoken of. If the name of the sub- 
titute had been in the list, the justices might have 
chosen him in his own person, which shews that it is 
not necessary that the substitute should be in the list. 
By the construction contended for, the power of serving 
by substitute woidd he taken away.^ This is the first 
instance of a quo warranto for the oftice of conatable. 

Huddleston, contra.— By aUt. 6 & 6 Vict. c. 109, the 
name of the person, with whom arrangement is made 
to act as Bubatitute, should be in the list made by the 
vestry, and from wliich the selection is to be made 
by the justices; otherwise, a person not having the 
confidence of the vestry may be appointed. Before that 
statute, the office of constable was elective by the court- 
leet or the decennary, subject, formerly, to the approval 
of the lord of the manor, and, in modem times, to tfte 
approval of the justices. (Bae. Abr. Constable,** A., 

E. 166. [Erie, J.— The constable might always serve 
y deputy ; did the conrt-leet or the men of the decen- 
nary exercise any control over the selection of the 
deputy?] In Underhill v. Witts, (3 Esp. fi6). Lord 
Kenyon said, " When a substitute was approved by 
the inhabitants, and sworn in at the leet, tlie liability 
of the principal was at an end.'* f W^htman, J. — 
The Stat. 5 & 6 Vict. c. 109, seems to substitute the 
approval of the justices.] The 16th section treats of 
a refusal or neglect to find a qualified substitute, 
which means, duly qualified to serve. [Lord Den- 
nan, C. J. — Ho other qualification is i-equired for 
substitutes but that of age. Wightman, J.— When 
does the appointment of the suMtitute take place? 



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7 



MmA of tbe tneonTenience, sag^ted as to the choice 
of s peson otmoxioiis to the parish, is met hy the pro- 
TisaoDS in sect. 10, which require the overaeera to attend 
ai tke ^ledal seenons when the approval of the substi- 
tate B gim by the justices ; and the oveneers must be 
ergmsBt of any objection to the proposed sabstitDte/] 
Tke penon who is unwilling to wire is not require*!, 
hj^ SMi. 12, to mention the name of his proposed snb- 
itotwie hrfsfthand, A qao warranto issued for the 
tttce sf eontaUe in' JZex t. Gondgt^ (2 Str. 1213). 

"Lerd Z^unuir, C. J. — We have no doabt that a <^uo 
WHBotD will lie ; and I am of opinion that the point 
vp«n itat. £ & 6 Viet. e. 100, is clear of all donbt. By 
sect. % the OT tTMc r a are to make out a list in writing 
of a eeapetcBt number of men qualified and liable to 
Mm ■ eoutabln ; and, by sect. 3, at a meeting of the 
ialuibitKits in Testry another list in writing shall be 
■ads wit, of Both nnmber as shall be named in the 
pieccpt of pcnoQS qualified and liable to serve as con- 
ataUo. Id this case, a person, whose name is returned 
in tbe lot prepared by tbe Testry, makes an arrange- 
ment with another pexson to sem for him^ and of 
eavne tte nbadtnte most reeelre some oonuderation 
Ssrl^Bigvfea him tbe burthen of that aerrice. If 
^a niyWut were eornipt, it would he qnite a 
CiBBittiuDg; that is not shewn here; and I am of 
^foaaa, ths^ in this ease, the providons of the statute 
Jmti hen lUly complied with. 

CouBnwB, J. — ^Tne question in this ease is not to 
ke decided merely upon a balance of the coaveniences 
and taeoiTeiuences of the coarse objected to ; but a 
eoBsidetation of them would not lead us away from 
that GODstniction of the stat. 5 & 6 Vict. c. 109, which 
the wads properly bc^r. There is nothing in the sta- 
Me which diews affirmatively that the substitute for 
ft pcnoo, chosen to be constable, must be qualified, in 
maBMof his name being inserted in the lut prepared 
hf tlw vestry. By tbe proviso in sect. 3, the vestfy 
My Mex to their list the names of any number of 
«wa wiSag to serre the office of constable, and whom 
ttey neonmend to be appointed, although not having 
th» faafifieations mesitioMd in seet. ff ; and, therefore, 
m anqaalified person may, under certun circumstances, 
lerre la principal. It would be strange if an unquati- 
M penm might serve as principal, and not as substi- 
tste. In the list made out and returned by the vestry 
IB wnfit persim may be named, and he may be chosen 
tj* tht jgstioes, under sect. 11 : the Legislature cannot 
mn intended, tiiat» in finding a sul>etitute, he should 
W eadbed to the persona in that list. 

Wmrxai^ J.— It is admitted that the daftndant 
■ faafiSed to serve; and thne is notluog in the 
ML & & 9 Yiet. e. 109, which Tequirea that the name 
Af tht Mfaititato dionld he in the list prepared by the 
TC^. Thn^ore, it is not necessary to consider whe- 
ther a pesson not qualified may be appointed substitute. 
Btn toe magistrates have exercised a discretion dearly 
given to them by the statute. 

Eau, J.^ — I am of opinion that the rule should be 
&dMind. The question substantially is, whether the 
■tat. 5 & 6 Viet, c 109, requires that there should be a 
ysHficstion for the substitute, and that the name of the 
nbatitate should be in the list made out hy the vestry. 
It is argued ihaX it doe^ because the constable was origi- 
Bslly anointed by the conrt-leet; but it is familiar, that 
pmoos so appoii^cd might serve by deputy; and there 
isae aotbonty for saying, that the bodj which appointed 
tuiused any control over the appointment oi the de- 
fa^. It k said that Lord Kenyon, m UndtrhiU v. Wittt, 
(3 map. M), supposed that thoe was soch a control ex- 
atised; snd I see the same supposition is entertained 
a iZcr V. Adlardj (4 B. & C. 772> 780) ; hut there are 
■0 mgm of the existonce of sneh control*. In Rex v, 

* tee 1 W. * H. c 18, s. 7, snd Hawk. P. a, b.S,e.lO, 



Clarie, (1 T. R. 679), where it was laid down that the 
office of constable may be served by deputy, and in 
Rex V. HoD€ Matueil, (Cald.2fi2), where the question 
was, whether the principal had gained a settlement, 
the office having heien executed by deputy, no mention 
is made of a control by the parish over the appoint- 
ment of the deputy. The ground of reasoning, there- 
fore, fuls, in point of fact, and we ought not to alter 
the pl^ words of the statute.— JZttfa ttitekargtd, 

Rao. V. Preston . — Nov. 15. 

7%e Majfor or H«ad OJher of Town* Corporate and Bo- 
Tougfu has the sole Appointttent of Oi>er$eera, hy virtue 
of Sect. 8 of Slat. 43 Eiis. c. 2, and Sect. 6 of Stat. 
6^6 WiU. 4, c. 76. 

A rule had been obtained on l>ehalf of E. H. L. Pres- 
ton, one of the justices for the borough of Great Yar- 
mouth, in the county of Norfolk, for a certiorari to 
bring up the following appointment of overseers for 
that Dorou^h, for the purpose of having it quashed : — 
" At a special session held for the parish, town, and 
borough of Great Yarmouth, in the county of Norfolk, 
we, William Norton Boroughsj Esq., mapror, and Wil- 
liam Henry Palmer, Esq., two of her Majesty's justices 
of the p^e acting in and for the said borough, inhabit- 
ing wiUiin the said borough, by virtue of and in pursu- 
ance of an act of Parliament made in the forty-third 
year of her late Majesty <iueen Elizabeth, intituled 
' An Act for the Belief of the Poor/ and of another act 
made and passed in the fifty-fourth rear of the reign of 
his late Majesty GreoTge III^ intitulen * An Act to amend 
such Fart of an Act passed in the forty-third year of her 
late Majesty Queen Elizabeth, as concerns the Time 
of appointing Overseers of the Poor,' do nominate and 
appoint James Taylor, George Arbon, Robert Bams, 
and William Levingstone, substantial householders in 
the aid parish of weat Yarmouth, with the chnroh- 
wardens of the said parish of Great Yarmouth, to be 
overaeersof the poor of the said parish within ourjuris- 
diction for the present year ; ana we require them to do 
all such things touching the said office as the law re- 
quires. Given under our hands &c., this 7th day of 
April, 1847. Signed," &c. 

It appeared from the affidavits, that Great Yarmouth 
is one of the boroughs mentioned in Schedule (A) of 
the Municipal Corporations Reform Act, 4 & 6 Will, 4, 
c. 76 ; and, under the 96th section of that act, twenty- 
seven persons were nominated to be justices of the peace 
for the borough, together with tbe mayor and deputy 
mayor, who are justices of the peace hy virtue of their 
office. At ameetmgof the justices of the borough, held, 
in pursuance of notice^ on the 7th April, 1847» the 
mayor and thirteen justices were present, and the mayor 
stated that he should appoint the overseers according to 
the custom adopted hy nis predecessors, and that he had 
power to do so ; and he accordingly made the appoint- 
ment in question. A majority of the justices present at 
Uie meeting protested against such appointment, on the 
ground that the ma^or had not the power to appoint, 
and that the appointment ought to be made by a ma- 
jority of the justices present. Four other qualified per- 
sons were then nominated by E. H. L. Pieston, one of 
the justices present, and such nomination was duly se- 
conded, and was approved of by the majority of the 
justices present; ana afonnal appointmentoffiiur over- 
seers was drawn np, purporting to he made at a special 
seasons by the said £, H. L. Preston and seven other 
justices of the peace acting in and for the said borough, 
inhabiting within the e^d borongh, by virtue of the 43 
Eliz. c. 2. The mayor persisted in the appointment made 
by himself, and the fSsur persons mentioned in that ap- 
pointment took upon themselves to act as overseers. 

Sir John Jervit, A . G., Arehbold, and Palmer shewed 
cause.— By seet 1 of stat. 43 Eliz. c. 2, the overseers of 



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THE JUBIST. 



every parish are to be nominated hy two or more jna- 
tices of the county. By sect. 8, the mayors, bailiffs, or 
other head officers of every town corporate, being jna- 
tice or justices of the peace, shall have the same autho- 
rity within their jurisdictions, as well out of sessions 
as at thdr sessions, as is in the act limited and pre- 
scribed to any two or more Justices of the peace of the 
county, or to the justices of the peace in tneir quarter 
sessions ; and no other justice or justices of peace to 
enter or meddle there. By sect. 10, if no overseei-s are 
nominated, the justice of the peace of the county, 
dwelling within the division where such default shall 
be made, and every mayor, alderman, and head officer, 
is subject to a penalty of SI. A reference to precedents 
shews that the mayor has always appointed the over- 
seers; and there ia an instance of wclosiTe authority 
BTCn to the mOTor by statute m sect. S3 of 5 & 6 
Will. 4, c. 63, for r^ulating wtrights and measures, 
which gives to the mayor or other chief magistrate of 
any town corporate power to impose penalties for of- 
fences aminst that act. The case of Sex v. Butler (1 
W. Black. 649) proceeded rather upon the supposed 
eacpediency of the rule than upon the strict construction 
of the statute. [Lord Dbmumm^ C. J.— Six W. Black- 
stone seems to doubt the decision in that case. CoU- 
ruhey J. — Lord Mansfield sa^s, p. 650, *' The statute 
omy means to sive justices m corporations and head 
officers, where there are no justices, the same power as 
josUoes in counUes, in sessions (wbere there are jus- 
tices) as well as out of it."J The latter observation 
contradicts the fomwr. [ColeridM, J. — It is added, 
** quod omnes justicL eoncessemnt."] The 8th section of 
ttat. 43 Etiz. c. 2, says, as well out of sessions as 
at their sessions.^ The last clause of the section pre- 
TOlts all justices interfering with the mayor. \_CoU- 
fidfft, J.— Suppose the case of an act to be done at 
quarter sessions, would the other justices be excluded 7 
The words, " to enter or meddle there," seem to refer 
to the county jnsdcea. At all tioToagh sessions, char- 
ter justices have a voice.] The appointment of over- 
seers is an act done out of sessions. By sect. 6 of 
the Municipal Corporations Act, 5 & 6 WilL 4, c. 
76, it is, among other tlungs, enacted, " that the m^or 
of each of the said boroughs shall be capable, in law, 
to do and vafSet all acta which the chief offieer of 
anch borough may now lawfully do and suSer, so far as 
the same respectively are notaneiod or annulled by the 
provisions of this act." TCol&ndge, J.— That enact- 
ment g^ves the power to the mayor virtute officii : it 
does not say, thfU., being a jostice of the peace, he shall 
have the power.] 

Prentice, contra. — The 8th section of stat. 43 Eliz. 
c. 2, gives the ^pointmeat of overseers to the justices 
of the borough : the mayor and bailiffo nsnally were 

i'ustices of the borough. In 3 Bum's Just., by Bere & 
Shitty, p. 067, citing from DaH. Just. c. 3, p. 10, it is 
said, "Justices of me peace at this day are of three 

sorts. Secondly, by charter or grant, made 

Inr the Queen uuda- 'tlu Grrmt Seal; as the mayor and 
oL&ef officers in diven corporate towns and boroughs." 

EGderidfigf J.— Tihe Blh section says, that the may&r, 
eing a justice of the peaca, diall nave the authority, 
not the jusUoes of the peaoe generoUy. The authority 
isgiven to persons who have two qualifications.] Lot^ 
Mansfield, m Bex v. Butler, [1 W. Black.649, 660), gave 
a clear opinion upon the pomL The cases of Bex and 
Btff. V.Moor, {Garth. 161); JZwv. Ftith^ Aud Rex v. 
Towill, (Cald. 135; 1 Bett, P.L., pi. 69, 72) ; i2<c v. 
Edwareu, (1 W. Black. 637),shewacustom in boroughs 
for the jasticss to appoint the evuseen and sign tdie 
rate. B^ seet.3 of stat. 17 Geo. 2, e. 38, in case of a 
vacancy in the office of oveneer, l)y death or otherwise, 
a power is given to two justioas to ^iptunt another. 
TOol«ridg», S.-^Im it elasr that l^ut enactment af^^ 
iohMKM^hs? TheMliaeetioii, whachisaprsnsoupw 



the enactment ^ving an ^peal to ^rsous ^griev* 
draws a distinction between coi^wratious genuailljr ai 
those which have not four jnatices of the peac 
Wightmant3.~W\xai, eflfect do you give to the lOi 
section of stat. 43 Eliz. c. 2 X] It continues the won 
used before. \Cideridge, J. — The term " head oflScei 
is introduced to meet the different titles of portraer 
provost, and others.] 

Lord DsKHAy, C. J. — I have no doubt in thi« caa 
Bv sect. 6 of the Mimicipal Corporations Act, 5 Sc 
Will. 4, c.76, tiie mayorofaboroughiscapahle,!!! l&v 
to do ah acts which tlie chief officer of such bozoag 
might lawfully do at tiie time of the pasung of tHi 
statute. One of those acts is to appoint ovuseers, b 
virtue of sect. 2 of stat. 23 Eliz. c. 2: and thia ia mad 
more eleac, if posuble, hy sect. 10, wiuoh impoaee « fiii 
upon the mayor if tiie a^xtotmeat is not made. SKi 
Prentice argues, thai, at that time, mayors weM tfa 
only justices, and ther^re that otiher justices canld ua 
be mentionf^: and he says that ix^wna why th. 
enactment is confined to m&yor% bieanae, if As X^Agia 
latnre thought that to name the mayor was the sanou 
thing as to name the justices, they could have dooi 
so ; but the answer ul that th^ have not done ao, Ii 
J2tx V. BtaUr, (1 W. BI. 649, 650), Lord Maosfialc 
was shocked to hear it oontttided, that the mayor 
being the returning officer, had the power to amohn 
all the overseers in a town which might connst « idmjxj 
parishes ; and I can see that it waa natnal t* take 
that view, if atteiUion was not given to the weeds <ll 
the statute. But thi^ <wse ia no authoritiy in swpport 
of this rule; and the worda of tiia statute an perfectly 
clear. 

CouBiDaB,J.— It wpescrs to me, that, ia 
Bex V. Bviler, (1 W. Black, 649), there u no reesonsble 
doubt: and, after my Lord has bo fully stated the 
grouuds of our decision, I shall only add, that I agree 
with Mr. Prentice that the 8th and lOth sections are to 
be construed upon the same principle. But then it is 
quite clear that it is Hupossible to oonstme sect. \Q aa 
applying to a juatioe who is not a mayor or high bailiff; 
and, therefore, it is imposuble so to construe sect. 8. 
There is another ground for our decision — thai tUs is 
an wthoi^ eenJ^red by tiia Lwhlatttre; and tte UHh 
section is penal, and therefore those who contend thit 
persona are sumect to it, miut shew tiiat they psott 
within the mrda. 

WioBTMAN, J.— The words of sect 8 of staL 43 £H& 
c. 2, are perfectly clear ; and Rex v. £ia&r ( 1 W. Blaok. 
649) b not an authority. Lord Mansfield (p. 650) 
ncprsssed his opinion on the argument of losonre- 
nienee, rather than on the words of the rt iJ wt a. It 
was rather an obiter dictum, sa Mr. AidihoU aigwd, 
than a decirioo*.— AsJeotsejafB. 

Rbs. e. Edts.— JRw. 23. 

B. Aeld tlia OJke of CUrk a Court of BapuHt inAr 
abaalAa; btUtOwk^tallbuiMt kit Son, wi»wmi» 
Partner vM Am « aa Attonuse, had itm iip- 
pointed his D^tti^, and was uctinp a$ muA at the TSim 
ofthepaemtg of Stat. 9 ^ 10 Vkt. e. 95 -.—Held, that 
tkeSmmunot entitkd, virtue of Sect. 34, to At the 
first CUrk ^ the Comfy Qmrt, at performing tie 
^^M^ Cleri at the Time i^m the leeal Act leat 

It ia aat a eufiaieiU Cemfilianee with Oen., S. 
7 <Sr 8 Q«o. 4— uuUcA refuirei, that in Qm Wanmte 
^b^brmatioHM ^9 Of>jeeitene ttOendedto be made le the 
Title of the D^endoHt shall be speeilM in the Jiafe tt 
skew Cause-^ state inthe Mule that the Defmdartwm 
net enHaed to he appoitUed, and that the JSetater mt. 
Kole calling upoa Thanas £dye to shew oaosewhy 

• Erie, J., had kftthri court. ' 



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9 




IbAc ntm* af a qvo mnwto ihMild 

h««xlAted ^amat him, to shew hy what an^o* 
lily hm cUm to boU Um office of derk of the Comity 
<3Mrt «f SliflafC bald at Hanloy, in the nme county, 
— ' - tmihy Tirtm af Mat. 9 & 10 Viet. c. 95, " An 
the Hwre easy ReeoTory of wall Debts and 
h IB &^]aad, vpoB the mand tbat the said 
I Idye wao ntk eimtled to be eppeinted the first 
diok of the aaid court, and that tbe atid Frederick 
TTiihiT^if It appeared fhnn the aSdarits npcmwhkh 
the iw «as ebtamed, that W. Bishop, an attorney, the 
Alivef twtimA Biabc«, waa the derk of the court 
rfiaqwaCa eatablialMd VMler atat. 4* A Viet. e. Uxxi, 
"Am Act na the more eaay and qteadT RacoTery of 
■bA Debta wftUn and adjomfag the Diatriot called 
*aStaM*hePMt«ri«a.*^ That, in 1841, Fraderiek 
«lBed iat« partaenhip wilti his fiither, and, 
• onttmeneeaaeBt of the said ooart of reqneats, 
himaeif the masi^emait of the duties of 
ipi, and til* «mlaments thereof were received 
'. dMdad between Mm and faia fcthen, in the sane 
■■■v as the paofita of tlieir genoal partnership bnsi- 
«ad, ia IStf, owing ta the iQneas of his ihther, 
%»WH ifiptnited by bis rather, wttbtheapinobatioii of 
^MG* ^ ^ eoarty to aet as deputy dortng each 
Baei% tai had eantamted to aet as saon antil, by an 
■ArafkrlljQcaty in ooondl, the court waa abolished 
m the ntt lhutli» 1B47, and the new dtatrict court 
lililirtiii m the Iftth of tbe aame month. That, be- 
Ar a^ eaart had been hoMen under and by vlrtae of 
Aa MM «da in oavmsl, he applied to the judn of the 
CW^Ceazi of Staffordshire, at Hanley, and claimed 
Mi nfit to be amxnntcd the first clerk to the said 
entjeoart ml Hanley, under and by virtue of atat. 
t ft' 9 Viet. e. 95^ gnranding bis application both upon 
Hi dbfaa as faaTmc performed the duties of the clerk 

Ae ewt of reqveata on and from the 1st Jane, 
wA the repe^ of tfae aet which eatabli^ed the same, 
Biih»«tne ground of WilKam Bbhop haTing offered 
nlbnitaini]^ to nre up any right or claim which 
k >%lrt be eonaiderea to have to such appointment in 
fcavef bim ; bttt tiiat tbe judge of the court refused 
li mnrt him to the aaid office of deric, and nominated 
Btad tbe defendant to tbe said office. 
. Jerriff A. G., Wetsiy, and L. Tmph, shewed 
-Rrak, the mle is defKtive in not sta^g the 
0BMdi«n iriiich it waa obtmaed, in pnrsaance of the 
■i^€im, H. T., 7 & 8 Geo. 4, (6 B. & C. 267*), 
abch ia malogima to that which requires, that, ujpon 
rfAtuK a rule to set aade an award, the objections 
btaidM to be inristed on at the time of makii^ the 
tal* ahenhrte Aall be stated in the rule to shew cause, 
n^^aw oa Iwmrda, p. 27S, 3rd ed.) [Lord Dmrnan, 
C Ingested that the relator nnght be allowed to 
Mnrftherria. CUlsrsdj^, J., referred to Am. T,7K<Mna», 
(I AM. It Q!. 183, 192).] Secondly, the rdator does 
Mt Aew that be hn any elum to the office. By sect. 
M ttHat. 9 & 10 Vict. a. 95, the persona holding the 
ifiecs or perfaiming the dn^ of clerks in any court 
haUra rader any act cited in nther of the Schedules 
(Ajaod (B], on the lat June, 1846, and who shall 
Mnae ivapeetively to hold the aame offices or to per- 
the same duti^ at Uie time when such act shall 
he icpaifed nnder tbt prorisionaof tiiis act, whether or 




aMdt waatiaD nad aspeaae hare bean oooaiioiud 
■I jefo nnari— a in the aataue of qae wairante, 
of T^mtg bmss opOB. wioas matters distinct 
~ en wtiieh the infcnaatioii was gruted bj tbe 
fbr Mondiiif m rcmedj in this behalf, it ia 
Aat tnm heBeafarth ttte «Aijcatioas intended to be 




not qoaUfied aa hemiiib^re pnrrided, shall be entitled, 

if not diaqoalified under this act, to be tbe first clerka 
of the same court when holden as a county court under 
tbis act. The relator was not performing the duties of 
the office within that section: ne was merely acting as 
deputy for his &ther. The only persons entitled are 
those holding the offices de facto or de jure at the time 
when Stat 9 & 10 Yiet. c. 96, jMissed. By sect. 88 of 
Btat. 4 & 5 Vict. c. Ixxxi, whicn is a clause introduced 
into all acts for establishing courts of requests, it is 
enacted, that the party holding the office shall hare no 
claim for compensation in case a general act should be 
paaMd : a deputy coald not hare called upon the Lords 
of the Treaanry for compeoaatton. If the atat. 4 Ar 
Yict. c. Ixxxi lud not contained that clanae. 

Sir F. T%mijftr and Sir JiAn B^Uf, eontnL— Fiist, 
the Reg. Gen., H. T^ 7 & 8 Geo. 4, doea not say that 
the grounds and reasons shall be stated, hut tut the 
objections intended to ha made to the tttleof the defond- 
aut shall be specified : it is an objection to the title that 
the party is not entitled to be niptnuted. Where it was 
necessary that a person should have taken the sacra- 
ment and certain oaths, the objectieu that lie had not 
done BO miurt have been stated. Secondly, W. Bishop, 
the fiither, is supeiaeded in the office by tbe position in 
which he has placed his sou: the 34th section of stat. 
d & 10 Vict. c. 95, entitles tbe person performing the 
duties of clerk at the time when the local act is repealed 
to be the first clerk of the new court. It is clear, that 
either the son or the fiither is entitled to tbe office. 

Lord DaHHAN, C. J. — There is no weight in the point 
made w Iwhalf of the relator. It.u plain the intention 
of the parties was, that the foUier snonld continue to 
hold the office as piinoipal while the aon dtaehaived the- 
duties of it as deputy. The hitention of tfae 34tfa sec- 
tion of Stat. 9 & 10 Vict c. 96, was, that the person 
who held the office at the time when the local act was 
repealed should be appointed tbe firat clerk, if not dis- 
qualified; and if there was no person holding the office, 
then the person performing the duties of it 

C(».BRiD6B, J. — It must be taken that the relator is 
tbe ^n, and that bis qualification is the only one to be 
now considered ; and then it is clear, that he was not 
holding the office de facto at the time of the passing of 
Stat. & 10 Vict c. 96, within the meaning of sect 34, 
tbongh he was in a certain aaase petioraiiog the duties 
of it. The father was de jure holding the office, and 
he is not disqualified under this starts, though be 
may be pufenning the dntlet of the offioe by depu^. 
The 26th ssction or the statute provides for the pezssa 
holding the office of iMk hanag a d^nity hi cass of 
illnasa or anaMidahla abssnee; and, tbensfore, iUnaai 
is not a diaqualifioation aS tba father. 

WianHAH, J^Tbe hitaation of the Legislatare ia 
ssot. 34 of Stat 9 & 10 Vict, c 96, is fnlfiUed by Lord 
I>enmaa*B suggestion : it giires Uie right to the first ap- 
pointment, either to a person aottnUy boldii^ ma 
office de fiwto am) de jvre, or to a peraaa who was not 
actually appointed to the effies, out performing the 
duties of it duriag a raeaocy, net while soane otlier per- 
son is the offioer. Theredcesnotappear tobeanyUiiiig 
in ^is cass to exclude the daim of the firther to the 
office. 

ERtit, J. — lio man can claim under the sneond &lter> 
native in sect. 34 of stat. 9 & 10 Vict. c. 95, of per- 
fimning the duties of the office while another holds and 
is in actual posseanen of the offioe. 

Lord DEifHAN, C. J., added— The objection appears to 
us to be quite insufficiently stated in the rule. There 
should be something to point the defendant to the spe- 
cific nound upon which his titie ta the office is ques- 
tioned.— iZH& ditehaiytd, with cMto. 



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THE JUKIST. 



BAIL COUBT^HicBAEUUB Tbbh. 

Reg. v. The Londoit axd Sodih-wbsiebk Railwat 
CoHPAMT. — Nov. 24, 

Mandamus— Sailwqy CmpanjH~€hav*'*''^f*^'*—^ 
c. 18. 

A Bailwe^ Company gave Notice to B., &^ and D.^ 
trading in Copartnerahtp, of their ItOaaion to taie 
certain Premises oeeupied 6y tAem,for the Purposes of 
the Bailioayt under the Powers of the Act of Parlia- 
ment eonOttuting the Qmpanjfj icAich incorporated the 
8 Vict. e. 18. 

A Mandamus having been granted to the Company^ com' 
mandiag them to issue their Precept for summoning a 
Jvty to assess the Amount of Compensation to be paid 
to A, G.t »V v., the Court refused to quash the Writ of 
JUandamuSt although it wot alleged to hare been ch- 
tained without the Knowledge or Assent of P., one of 
the Copartners, but left the Defendants to make a Re- 
turn of the Facts f ifthof should thini fU. 
This was a rule calling on the prosecators to shew 
cause why the rule of the 11th May last dionld not be 
discharged, and why the writ of mandamus, lasaed in 
pntBuance thereof, dated the 12th June, should not he 

fnaahed, and all further proceedings thereon stayed, 
t appeared, that, in the month of Septemher, 1846, 
the prosecutors, Samuel Brown, Edward Gordon, and 
William Dunn, who carried on business in copartner- 
ship, in Southwark, were served with a notice, on behalf 
of the London and South-western Railway Company, 
of their intention to take the premises occupied by the 
prosecutors for the purpose of their buffiuess, under the 
powers of the act of Parliament for extending the rail- 
way. In January, 1847, negotiations were set on foot 
between the prosecutors and the Rulway ComjMuiy for 
settling the cltdm by arbitration. After conuderable 
-delay, however, they were abandoned; and, finally, a 
notice was serred, in the name of the proeecnton^ firm, 
requiting the Company to summon a jury, in order to 
assess the compensation to be pold to the prosecutors. 
The Company failing to do so, a rule was applied for, 
to shew cause why a \rni of mandamus snonld not 
issue, commanding the Company to issue their warrant 
for summoning a jury to assess compensation, which, 
in Easter Term last, (May 11), was made absolute, 
by consent. After the rule was made absolute, Dunn, 
one of the prosecutors, called on the solicitor to the 
partnership firm, and expressed his surprise that such an 
application should have been made, and protested 
against bU name having been, as he alleged, used with- 
out his authority. No dissolution in the partnership 
had ever taken ^ace, nor had the solicitor to the part- 
nership ever received any intimation from Dunn not to 
use his name to the proceedings in the application for 
the mandamus. On the 21st July, 1848, the following 
notice was served by the solicitors to the London and 
South-western Railway Company, addressed to each 
of the prosecutors : — 

In pursuance of the provisions of an act of Farlia- 
ment, called the London and Soutli-westem Railway 
Company's London-bridge Extension Act, 1846, and of 
the several acts recited tnereln and incorporated there- 
with, especially of the acts called * The Lands Clauses 
Consolidation Act, 184A,' and * The Rulway Clauses 
Consolidation Act, 1845,' and also in pursuance of a 
notice, dated the IMh day of September, 1846, hereto- 
fore duly served upon each of you, I do hereby, in the 
name and on the behalf of the London and South-wes- 
tern Railway Company, being the promoters of the 
undertaking described in the act first above mentioned, 
give you notice, that it is the intention of the said Com- 
pany, after the expiration of ten days after the date 
hereof, to issue a wan-ant to the sheriff of the county of 
^urrey, for summoning a jury to assess and settle the 
price and compensation to be awarded and pud to yon. 



for and in respect of your estate and interest in the pre- 
mises referred to, and specified in the said notice, and 
for and in respect of all damage sustained or to be sus- 
tained by you, by reason of the said railway extenaon, 
and of the execution of the works thereof; and I do 
hereby further give you notice, that the said Company 
are ready and willing to pay to you, for your interest in 
the said premises, and for the damage that will be sus- 
tained by you by the racecntion of the said worksi the 
sum of 07. 6s. Dated this 21st day of July, 184S. 

(Signed) «L. C, 

" Secretary to the sdd Company. 
« To Messrs. S. B., W. D., & E. G,, 
the Prosecutors." 

The Company, however, did not issue their warrant; 
and on the 2nd October, 1848, the solicitors to the Com- 
pany wrote to the solicitor for the proscntors, stating 
that Dunn, one of the prosecutors, had served a notice 
on the Company, requiring them to proceed by arbitra- 
tion. The writ of mandamus, c^Bnted by the rule of 
the lltb May, was then served on the defendantj^ 
whereupon the present rule was obtained ; U|diwtwhichf 

Watson, Q. C., Pulling, and Dtmeam (21th NoTem- 
ber) shewed canse.— The defendants seek to set the 
mandamas ande, on the ground that one of the prose- 
cutors, Dunn, a partner In the firm of Brown, Gordon, 
& Co., has disavowed any participation in the appliea- 
ticm for the writ, and alleges, that be never gave au- 
thority for the use of bis name. The answer to this 
objection is the well-known principle, that one parfaier 
may appoint an attorney to traiuact the partnership 
affairs. Each individual partner constitutes tiie other 
bis agent, so as to bind the partnership property. In 
Whitehead v. Hughes, (2 C. & M. 318), where one of the 
partners had become hanknipt, and the solvent partner 
commenced an action in his own name and that of tbe 
Bsdgnee% the Court refused to stay the proeeedinga, 
although it was alleged the asdgnees were not consent- 
ing parties to the action. Bayley , B., there said, ** One of 
several partners has a clear right to use the names of the 
other partners." This case is oome out by the decisions 
in bankruptcy. (CW/eft v. Huhbard, 2 P.Cooper, 94). 
Partners may give auUioritv to prove debts due to the 
firm ; if one putner signs a bankrupt's certificate. It is 
binding on his copartnera. {Ex parte Hall, 17 Ves. 62). 
The premises in question belong to the copartnership. 
The Company having given notice under the Lands 
Clauses Consolidation Act, 8 & Vict. c. 18, s. 18, that 
they will requii-e them for the purposes of the act, 
the contract is a binding one, which they cannot now 
rejiudiate. If the Company had Intended to rely on the 
objection, they should have done so upon the rule being 
granted for the mandamus, which professed to be made 
on behalf of Brown, Gordon, and Dunn, the three prose- 
cutors. Even supposing the objection a valid one, it is 
now too late for Dunn to turn round and say, the ap- 
plication was made without his authority. The Court 
will not permit a man to lie by fi-om May till Novem- 
ber, and then endeavour to upset proceeding which, in. 
themselves, are perfectly regular. The incident to all 
partnerships is the payment of debts and receiving 
money. \M. D. Hilt. — As to the notice being binding 
on the Company, I do not dispute.] It is quite dear, 
that one partner may sue in tbe partnership name for 
debts due to the firm. The question then la, whether 
there is anything in the statutes relating to nilways 
to take it out of the general rule of law. On a care- 
ful investigation of all the clauses, it does not appear 
there is any such. QThey cited Stone v. The Commer~ 
cial Railway Co., (4 M. & C. 122; S. C, 1 Railw. Caa. 
S7d); Lamberfs case, (Godb. 889); Sandiland and 
Others V. Marsh, (2 B. & Aid. 678) ; Fox v. Clifton, (6 
Bin?. 792) ; Steady. Salt, (3 Bing. 101 )J 

M. D. Hill, in support of the rule.— One very mate- 
rial point in this case is, that an agreement had been 



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11 



node, that the qnration ahonld be detramined arU- 
tnliMi ; and, id order to carj vhkh out, an arbitrator 
wm uetaaUj appointed. Bat then it is said, one part- 
Dflr anBot htzM anotber by reference. No doabt he 
ODiiot, b«t that is on the ground he cannot bind him 
bj ^*d; but a mandamus applies as much to one 
paitDcr as the other, and, nnlw they are all unani- 
MOOS in Baking <2ie application, the effect wonld be 
tiw SUM. [He cited Jhnt^al and Another r. Wettan^ 
(7 lieaR,3S6); ffambridge t. J)e la Ctxm^, (3 C. B. 
712).— Be KM then stopped by the Conrt.] 

Pimsoir, J.—'Tbe ^t|^cstMm here is to quash the 
nit of ■■■iiiliiiiiiw, it IwviDg issued, as alleged, impro- 
pa|7, aftCT a noCiee giren Dunn, one of the prose- 
catoa, SBbeeqncntly to the lesaing of the mandunus. 
AH the fMt% at the time of the writ issuing, as rq;ards 
tbe pmeentcoB haring appointed an arbitrator, were 
kaswa to the Company at the time the writ iisued. 
I mt, thscfore, take it that no notice was giren, 
nia the act of Parliament, claiming compensation, 
bot the ^pointmeat of an arbitntor in the first in- 
stiBce, wluai seems prematare. The act says, sect. 21, 
*lf soch patty and the promoters of the undertaking 
daHwit ai^as to the amount of the oompensatton 
toVfwLby the promoters of the undertaking for the 
inlBat ia ncfa Inds belraging to aoch party, or which 
kiifytkv tr the speciafac^ oiabled to sdl^orftHr 

SdH^gi^ the amount of meb compensation 
fce siuid in the manner herdnaAer pronded fm 
attlingesKs of disrated compensation,*' Power is th«i 
m«B, if the party claiming compensation desures to 
■sre tke matter settled by arbitration, for tarrying the 
■■w iato dkct. Sect. 23 provides, '* that the appoint- 
BKBt liill be made, on the part of the promoters of 
tiK Bs^ti&ine, under the hands of the said promoters, 
tt ay two of them ; or, if such party be a corporation 
iRrqitte, under the common seat of sach corporation." 
Im net find that any notice of such appointment was 
tm xBt; if BO, it was premature, because the next 
iUf,if» freeing to refer the matter to arbitration, 
vhU kn beoi to see if they concurred in the ap- 
ywifrnfil of an arbitrator, llie statute tiien goes on 
tear,''Sadi appointment shall be delivered to the 
sriabitte, and wall be deemed a sabmisuon to arbi- 
tatin OB the part of the party by whom the same 
Aiil \t nadc.** I take it, it has reference to this 
dnuc, tbat the affidavit states that the anpointment 
sere was delivered to the Company at all. In No~ 
Teabtr, ]8^, proeecators send in their claim for com- 
pwtia, snd afterwards rec|ue8t that a jary may be 
HmmooeJ. A mandamus is then applied for: no 
cttK w dicwn against the issuing of the mandamus, 
vtidi, i\ weaam, the Company should have done, if 
thqr istoded to object. It is very true, as Mr. Hill 
t&it the thiee months, in sect. 23, docs not apply, 
vcsdi are, ** If, where the matter shall have been 
wfared to aiKtrvtion, the arbitrator^ or their umpire, 
lUl fcc three months have foiled to make their or his 
avud, er if no final award shall be made, the cjuestic n 
of CMDpaaation shall be settled by the verdict of a 
jvyf that isi, after the Bubmission to arbitration. I 
tskc it, that ihe knowledge of these facts, that Dunn 
dwzji wished the matter to proceed by arbitration, 
eanw to the Company since the mandamus issued; 
that ^tcarin^ so, the defendants say the writ was im- 
fmfttiy obtained^ by reason of the solicitor represent- 
ing be sppcared for all the parties. In answer to this, 
the <i(her two partners say they had not seen Dunn 
hw the Boatb of July previous; and that they acted 
a> th»y eeoeeivcd they had a right to do in sending in 
their daim. Dunn, when be heard the rule nisi was 
aliteined, is said to nave been angry, and remonstrated 
*ith the solicitor who applied for it. That part of the 
■fi^it b expealy nmtived by Fatteson, who says 
btolU (HI him sererai times, and had c<mTer8ation8 



with 1dm, He swears he did not object, but actually 
concurred, Dunn's affidavit is folly answered by Fat- 
teson, who says he made no objcouon. Widi leipcet 
to the power of partners binding one another, a great 
deal 01 difficnlty may arise on this act: one is, with 
respect to arbitration. It appears a matter of discretion 
with the parties claiming compensation, whether it 
shall be settled b^ arbitration or not. If they elect to 
do so, all the parties must agree; either there must be 
a joint appointment, or no apptnntment at all; and the 
claim must then be settled oy a jury. The Company 
have a right to take the premises, and there must be 
some mode of setiling the claim. If one party says he 
will not assent to the appointment of an arbitrator, a 
jury must be summoned, notwithstanding Dunn's no- 
tice to the Company. The Company are perfectly safe 
in acting on the inquixy, in the same way as if Dunn 
were a party. I do not see how the Company can pro- 
ceed by arbitration, because the other partners. Brown 
and Gordon, will not agree. The inquiiy must, therefore, 
be b^ a jury. The only mode, if the Company still per- 
sist m refHising, is by returning these facts on the man- 
damus. The rule ought never to have been granted, 
and must, ther^re, be dischaq[ed.*.Rii<i ditaaryti, 

COURT OF COUUON FLEAS^Hich. Tuh. 

CoBDBif «. The Uhivkbsal Gas-uoht Courun^ 
Nov. 24. 

Joint-ttcdk Companuu Act, 7 4* 8 Viet. e. 110— iSSbuw- 
holder /or tJu Time hetng-^PnuHce ■ S9e md AppU- 
ocaitm — Notice — Exoaition. 
AffidaoiU ttated, that, from the Retumt filed 5v a Com- 
pany m the RMtttratioH Office, it appear^ that D. C. 
hadtigned a Content toaetat One of the Provieional 
Committee; that he was a Party to the Deed ofSatU- 
meiUf which emtointed him a Director, and contatHtd a 
Recital that the Parties thereto had taken Shares, and 
a Siipulatim that each Director thoHld hold Fifiyt 
thatno Tranter of Shares l^D. Chad heenregi^ered 
in Ui» Ctjfiu om Nofmibtr 6fil, Five Days before ths 
Buh was moved:— H^d, (Aol A sufficiently appeared 
that Z>* O. was a Shareholder for the Time being, and 
liable as such, under 7^8 Viet. e. 1 10, *. 66, to Exe- 
cution upon a Judgment obtained ly the Plaint^ 
against the Company. 
A Bale, calling upon the same D. C. to sheto Cause tohy 
Execution upon the same Judgment should not issue 
against him as a former SharMolder in the Company, 
was, in a previous Term, discharged with Costs, on the 
Ground that a Notice given under the 68fA Se<Aion had 
been exhausted: the Costs of that Rule had not been 
pmd, but afresh Notice had been given, charging D. G. 
as a Shar^dder for the Time being:— i/ef<f, (Aol the 
Plaintiff was entitled to issue Execution against D. O. 
as a Shareholder for tie Time being. 
In this case, Phipscn^ on November 11th, obtuned a 
rule <^ <tlli"g upon one Dominique Causee to shew cause 
why execution should not issue against him as a ehare- 
bolder for the time being of the Universal Gas-light 
Company, upon a judgment signed and entered up by 
the plaintiff against the Company. It appeared from 
the affidavits upon which the rule was moved, that a 
verdict was obtained by the plaintiff in an action agtunst 
the Company for 110/., the balance of salary due to the 
plaintiff as engineer to the Company; that judgment 
was duly signed in the action, and a writ of neri facias 
issued against the goods and chattels of the Company, 
and the ^erifis returned nulla bona, as there was not 
sufficient pnqterty of the Company at their place of 
bunnesB to defray the expense of the levy ; that tiie 
place of business bad rince been closed, and tliat a writ 
of execution against the property of the Company wonld 
be wholly unavailing: and that the only chance of ob- 
taining any part of the plaintiff's claim was^ by pro- 



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TfiE JURIST. 



CMfiag against tte zafividiiBl iDflmb«n. That the 
CampauTwas o«a^«t«ly n^^tmni nodar 7 & 8 Vict, 
ft 110. That a eMawnt aignetl by Doaumqiw Canaaa 
to Bot aa <MM of tJH proviiioii^ oonaittae, wd to take 
Aaaea, waafiled in the Re^atration Office; that he was 
alaa a party to tha deed-ef eettlemeDt, sod was appointed 
director. That the dead »f aetUeaaent oontained a re- 
cital, that the KTerat partk* hereto had taken shares in 
the Company, and that each director Aould hold fifty 
lAarea. Ana the affidarits ftiither stated, that no trans- 
fer of any shares by Dominiqae Canfae was reg^tered 
at the omee np to the 6th November; and that a notice 
oi the preecmt application had beao loft his residenoe. 

Jhffvitrd, Ser)t., (Nov. 24), Viewed cauee. — There is 
tide objection to the preaeDt application, ^at it is pre- 
daaly the same as aae made by the plaintiff a^faanst the 
deisndant in IMnity Tenu last, iriiKh ma disohaiged, 
wKh oosta. ( 12 Jur. 630). Bat, if not the some, the 

Slaintiff has not paid tiie oosts of the former one, and 
e isnot entitled to be heard now. In Doe d. Feldon r. 
Mtotf (8T.R. 645), preoeedinge in ejectment were stayed 
till the oosts of a former ejectment, brought by the lessor 
of thephuntifT against the defendant's father, aa the sane 
title, were paid. But, independently of the qaestktn of 
costs, this is, in effect, the same application as the pre- 
Ttous one ; it is between the aame parties, and has the 
same object, viz. that execution may issue against Causse 
on the judgment ebtamed against the Company; and 
vhetiier he is described aa a fininer or a present share- 
btdder, is immateriaL TUt r. DUom ( 17 Law Jonm., 
N.Sb,C.P.,6l) di^s from the preamt ease, that there 
the aecond a^pucation was not nade m the aaan name 
aathat in which the first was made. But, in Seff. r. 7%e 
MtmcheaUr and Leeds lUnttPw Cbaipaf^, (8 Adol. & 
£11. 413), the applicati<m was for a nrtioFari ; and the 
Court aaid, the rule of jtractice, if not altogether uni- 
rtaml and inflexible, is as nearly so as possible, ^at 
the Court will not allow a party to aucoeea on a second 
B|fplieation, who has previously applied for the very 
same thing without coming properly prepared. Besides 
which, there are no matenau to shew that Causse was 
a shareholder at the time that the contract was ent«-ed 
into. By sect. 3, ** shuvholder" means a person entitled 
to ■share, and who haa exeonted the dead of aetUement. 
The &et8 which, in SeM t. JBeritd^, (16 Law Jonm., 
N. S., C. P., 107), were held insufficient to eaUblish 
tiut the defendant was a member at the time of a judg- 
ment entered into agaiaat the company, were stronger 
iban those relied on by the plaintiff in this case. 

SJHtmle, J. — How can you get over the Ihct, that the 
eed reoites that the parties tbM«to hmt taken ahares, 
and no transfer appears ?1 

Phipaon, in support of the rule. — As to the nonpay- 
ment of costs, this case is not governed by the practice 
in cases of ejectment. The action of ejectment is pe- 
culiarly a creation of the courts ; bnt there is a reason 
for requiring costs of a previous action to be paid before 
Mimitting a plaintiff to proceed in a secoiw, bocasse 
ue pferious aetion cunot be pleaded as an ertoppcl m 
bar of the second. (Dob d. BUuUtirH v. SUmdStk^ 3 
Dowl., N. S., 30). It is said, in the 8th edition oi 
Chitty's Archbold's Practice, p. 1204, that astay of pro- 
ceeding in a second action, until costs of a former acUon 
are patd, will not in general be granted when the first 
aetion was not decided on the merits; and, in p. 1297, 
the rule ^for judgment as in case of a nonsuit ) cannot 
be moved, with a stay vf proceedings, nor will 'the 
Conrt, unless under peculiar circumstances, make it a 
part of the rule, that the payment of the cMts shall be 
a condition precedent to ulterior proceedings. The 
aent is a totally difierent a|)pIication from the former, 
which wae for execution against Can tee in hischaraeter 
cf farmer duuvfaoider in the Company ; the present is 
WMOBthimaaaahmhtMerjWsilafMMMfy/ wd the 
IbUlltiflBor the tm «laMsa.of abanhaUen as» vaxy 



I dlffi w CTt nadw 7 & 8 Vlot. e. 11^ a. 66. The fbnan 
I i^lkation waa disduugad not on the merits, \mt m 
! some tedi^eal objeotiona, liie Couit demduig tlvt tbe 
^uKtiff bad no loena standi in conrt; that, m wrfntnf i 
not, there waa no notice at all— 4he one on wi tick be: 
ndied having been exhao^d by a previous applicati«t 
made under it to a judp at chambers. And though the 
cases establish, that where a man has the oppertanit; 
of ^plying to tfaeConrton proper matfflials, in the fint' 
instanoe, he cannot make a second application on tbe 
same materials amended ; yet no case diews, that, when t 
new state of things exists, an application under an old 
state of things is a barto & subsequent application under . 
the new. A sd. £a. might have issued without notice 
at all before the passing of this statote, whitA snbsfi- 
tnted the y a t nt application in the plaee of a ati. &.; 
and it ia a matter of right, under the 60Ui seetioa, 
that creditors EdiouM have thefniits of their judgmonti 
againat the shareholdere of a company. As to Causae' 
not being a Aarehcdder, then «an oe no doubt as to his 
hawing at same time been a shareholder; and his liabi- 
li^ is cemtinned, by sec^ 13, until a transfm- (tf lus 
wu<BB is registered: and he does not now pretend that 
such a transfer has ever been made ; therefore he is still 
liable. 

Golhuk, J.* — As to the first question, whether the 
Court should postpone the hearing of the piea e n tapidi- 
oation until the eoata of the previona one ham been 
paid, w* think, that, as the defiBiidant Cassse tOa got 
an cmerin his fovovr for those oest^ and itdoesnotn- 
pear that be cannot enforce it, no sufficient grsmm 
iMva been riiewn for ataying proceedings till tin 
costs are paid. As to whether Cansse is or is net a 
shareholder, there can be no contest. By tiie 3rd sec- 
tion of 7 & 8 Vict. c. no, the word "shareholder" 
means any person entitled to a idiara in a oiHnpray, 
and who has executed tiie deed of settlement.** Toe 
deed in this case, which Causae has executed, recites 
that he had taken shares; and by the I3th section his 
liability aa a shareholder continues until he has made a 
return of a transfer of his shares, pursuant to the pro- 
visions of tiie act. This he has not done ; therefore, he 
seems to be a shareholder for the time beios:, and pro- 
perly subject to this execution. Bnt the wbjeeHon to 
the rule is, that a former applioatiMi has imsoccessftillj 
been made to tiie Court, wnioh waa snbatuitiaHy the 
same as the present. No doubt, had that nppU< 
cation been heard on the question, whether or nt 
he waa a shareholder of the company, the Court wonU 
not now entertain that qnestion a^n; bat, in th< 
former case, the origin^ notice required by the act wai 
oonridered to have been exhausted, and the plaintiff wen 
in the same position as if no notice at aH had been giTcn 
uid on that ^ound the Court dtschar^ his rule. Ii 
the present instance, he stands in a different position 
he has given a new notice ; and, without doing violenct 
to the established cases, I think we may reasonabh 
held that he is entitled to be heard on his present appu 
oation, and that this rule most be nude absolute. 

Madlb, J.— I am of tiie same opinioii. Upon thi 
former occauon the Court held, that the notice, u^i 
which the qn^ion arose, was not sufficient to entidl 
the plaintiff to proceed against tile defendant as i 
former shareholder of the Commmy. At present a cBI 
ferent state of fitcts exists, on which, withont nforeno 
to the former application, he is entitled to the r e med; 
he seeks. If, on the former occasion, the materials a 
which the plaintiff proceeded had not twen sufficient 
he luving the opportunity of making them sufficieni 
if be had now introduced something different, whic 
he might have introduced before, the Court mi^t hav 
ref^MBd to entertain the application, and certainly wonl 
not have heard it, if, on the pnrvions houring, the sain 



* Wilde, C. J., wm absent from fflbess. 



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THE JURIST. 



19 



MMtiM B«w sabnkt«d to Umb had bew deeUed ; bst 
T think tfaat amw ve an not daeiding tt* aaiM qoae- 
Hem as we wtn thoo. Ob tbe otb^ poinit, I oomd- 
viUt mj BrUbmt ColtaMH. 

WiiMiMs J. — I am of the same opinion, and tiiink 
Oat tUa eaaa &Uancither within tba prineipla nor the 
af tfaft rab whMi govanad fmnar dad- 
i OK tUaanlijeet.— Alb oAmW*. 

STTTIKGS IM BAl^C AFTER UICH. TEItH. 
Caaunv Mid Anothrr a. AKnAntn^ZHfe. 8. 



to hrinpBome a €cayoef^ Wool. 

, Smri, «r oCAar M«/ Merehemdi$$/* Bari 
mttttaeeei TmSy TaOlaw and Hidttnotioex- 

«ad Aji^' 7%Ma, " onij ft> deHwr the aame^ on bting 
rmtifrmskt 9afi>Utm»:—For Wool, One Pem^ Ha^- 
pmmf per Pmmd proMd^ and One Feni^ Halfpenny 
mnd OmtMkA ^ a Pamjf per Pound immre$tedi^ 
>r At mer T%rte Artidee tuparate Rate* were 
M'^ ^ *k OmCmh wof to Bitls of Lading at 
«M Sale ^ TVvMb, witkota Pr^ttdiee to the 
Okmttrrm^. T%e Skm returned wiA aJuU Cargo^ 
' y jr • ^all Portion mfy ef Wool,andthe 
. n^K^Bort, mdee, and other lepalMer- 

Mm, am He CkarUrer waa 4tt LOer^to O^a fiOl 
Cerf «f kgai Merekandiee other l&m ^ epenAed 
Ar^da; imA^tke aamke Freight woe tohevrndae if 
ACmyohadeomnatadentir^^thoeeArtidBMaeeord- 
% (a lie Terme of the Chmrterparlgf. 

SnmA, Oat the Stnownereieere at leatt entitled to the 
meOmt timtrntt of height to ptofobley ae Datnagea 
firaSrmeh efControet^ tn not loading aeeording to 

BuA, Aaf th ere waa no Ambiamity upon the Face ^ 
^Ckmvipmtp toodmit Parol Feidenee/or the Pur~ 
pHc^ Anriu a aoAo waa topayjor premng onjr Wool 
^ might be JUpped. 

iImh|mL qd a <durteiparty. The declaration 
■Me^itna^grMd betwean the plaintiK and defend- 
«i. Ihit tlH Mp Pukfield, being tight sheold, 
«tt in eoaTcniMil q>aad, having liberty to take oat 
W the dup'a boiefit, for the Cape and Port Phi- 
nd fxoeBui to Hobatm'a Bay» Fort Phitin, or 
m anr OavBBto m Ae might mMy get, uid there load 
bea &e &ct«aB of the said defeDoant a foil and com- 
vhte eaig* of wool, tallow, bark, or other l^al mer- 
dte qnsntitjr of bark not to exceed mly tons 
laVfAsaLfltnr^^ without the consent of the roaater, 
nd tbe qnatfty of tallow and hides not to exceed 




* flto a whwmmit day, 

jn^saa appftid to Am Coart tiial m fonn of writs of aieea- 
■ ^pbt be e t j aiij fay tbe judges, for tlte pttrpose of gtrfaig 
fact late stiC 7 &8 Tict. c. lift, i.6B, u no fonns nnder 
bed yet been pnraielgalad iff the jn^es. lite 
■ksMtiMi, wWahgtreepowertotheCtNutteiMkaanorder 
waaCm to isBBe aniiMt a rtacaltolder witboat ■ soirs 
thaC, "fat such osass, snab fcrm of writs of 
ha aaad oat of the eoorta of law sad aq^tf 
cMac effMt to the pforision fa thtt behalf 
, as tbe jadies of sadi coarts le^Metirely shall from 
mm to time thnk fit lo order." 

VuaiAJaa, J., nfened to Srdf t. Martin, (6 Mae. Bt W. 
MV wfeeae, m nCmsHe to a nmilar pnmsioii contained in the 
1 ft XTkC c IM, a psa^ was held at ^beitj to frame himself 
■A vit aa ha la^abtd aader thtf statute, befote tbe jadrns 
W h\ iMil tha new fcnae of writs Ibr that purpose, and wUdt 
* g w m M . L M p a—ead to da by tbat itatwte. 

Taa Cavar Aenapaa reeauaanded Pi^woa to adopt die 
•Ml ef ftaai^ WaMrif Ike pu psr Cm «f writ* as Mag. 
■te Aa ^naaHlBHaib Iha SMot aaaaaalnt aaaiao to 



eighty tmiB— «at axeaadtng what she covld raaoonabfy 
alow and carrr over and abore her tackle, apparri, pn^ 
viaiona, and mmitare; and, being ao loaded, ahnaU 
herewith piooaed to London, in any dock the dsfiai 
ant might ^paint^ or as near tbeevanto as ahe migfat 
safelv get, and deliver the same, on being paid freiglilt 
aafollowa:— For wool, onejpoDny halfpenny par pond 
ineaaed, and one peony halipcwiy and ona^ghtn of a 
penny per pound nnpreased, gnao weight; tallow, 9. 
per ton ^ SOewt. ; bark, 4/. par ion tf 20 ewt.; ani 
hsdea, 2^ per ton of 20 cwL, all grese, (the latter not to 
exceed 20 toa^ without conaent ai the ea^itain), in fiili 
of an port ohargea and pilotage, as cDatosnary, the act 
of God, the Qneen'a onenuet, fir^ and all and ormf 
other dangers and aoridoite of the oeaa, rivvn, and 
Ttgationa, of whaterar natare And kind soever, duiing 
the said voyage always excepted. One-third of As 
&eight to be paid in cash on anloading and right delk 
very of the caq^o, and tbe remainder in cash orbyap^ 
proved bills at two months foUowii^. And it waa 
tiieraby tben fiicther agnad, by and iMtwean the aaid 
partiea, that ninety working dura at Part Pl^ 
shoold be allowed the daftndaat, if the ahip should not 
be aooner despatched for Loading, and ten d^on da* 
ranrrage over and above the said laying days, at HML 
per day, and that the penalty for non- per furnunNo af 
the said i^^aement riionld be 3000/. ; that An aUp 
akonld be rep«nrted at the Cnatom-hotiae, London, bv 
tiie broken tnonm deaeribed, as, to wit, Mesen. F. m 
Co.; that the ship should be addresaed to the defaad- 
aat's aganta at Port Philq> thercia deaorilMd, a^ to wi^ 
Messrs. B. & Co.; that the eaigo Aonld be broaght 
alengmde the vessel at tim defbn&nt's risk and ax pa aa e, 
stowed and tfaohatgad anaoadtng to ttie oaotom of tha 
port; that the eaoitain ahouU ^^n UUa of lading «fe 
sny rate of Mgfat, without nrejudiee to tiia chaato>« 
pvty ; ^at, ia tiw ewnt of ttie defendant's agcnto aot 
having aidteiaBt wool, ^y dsonld be at liberty to laai 
100 tons of baric In lieu of SO taaa, upon paying aa ad- 
ditiooal 10a. per in for the wiMk. And it was theee- 
by then fnrlbOT agreed, Aai the vessd should not sail 
from London later than the SOth di^ of Srptembertiun 
aect fidlowiiu;, to vrit, the 80th day of September, a.o. 
1M4; that the defendant should not be at liberty to 
ship marefaandiae in the cabin withoat permissien front 
the esfitain ; and that tbe ship should not be detaiaed 
at tlw Cape later titan ten d^s, wind and weather pea- 
■sitting. The declaration tiun averred nutnal pronuasi 
and pe rfo rBsanea by tbe tdaintiflb of aU thinga to be by 
t^ pMifimnad. Bnadi by tfaedeiewlant,that hedid 
not load the veaael with a cargo of wool, tallow, bark, 
or otiior legal BMBdiaadiae, at Hobson's Bay, Port 
Fhil^,arc(nding totlM tanorand effect ef charten> 
par^. Tba deelaratien also contained a oonnt A« 
mdgn, and far money pidd, and on an aoconnt st ated. 
Plea; payment of It. nto court. Rpplioation: dn> 
maaae ultra, and {asne theveco. The cause was tried 
before Wilde, C. J., at the sHtinee in London after 
MiiAaehnaa Term, 1M7, wWn it appeared that the 
ship Park&U sailed to Port PhiHp, and arrived 
there on ihe Mh Febraaty, ao late in the wo4^ seaaea 
that the defendant's agents wem unable to pnivids • 
fall cargo of wool. They accordingly made aa arraa^ 
ment with the captain, expreesed on both sidee to ba 
withoniprajadiaa totheeharterparty, under which tba 
Adp went roand to Sydney, and ultiraaiteiy r o t u raad 
to London, aa the »st October, 184fi, with as faH 
aa, aonsidenng its nature and stowage, sha 
oanld carry, eanaistuu of -600 balas of wool, waigli> 
iag «0 toM, ot tallow 200 tmm, of bark 144 taoi^ 
atid the MMae, gtmi, hcraa, hoofs, boaea, tro»- 
nafla, skins, and wood. "By the partiookn of de m aai d 
the plaintiffs claimed frei^t, as per chartorp art y, on 
2604 bales of wool, aas i age weight 280 Ibe. per baio, al 
lHL,MOtsaa afbafk, WtoM «< tolW, and Mton 



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14 



THE JURIST. 



of hides. The defendant contended, that, under the 
charterparty, he was at liberty to ship any legal mer- 
chandise; and^ in case it did not consist of the enu- 
merated articles, he was to pay freight after the rate 
current at the port of lading, and not necessarily a 
freight caleulated as upon a cargo of wool. A Terdict 
was taken, by consent for the pMntiffs for 1740/., and 
it wafl agnea by the counsel on both aides as follows: 
That the rerdict should be subject to the opinion of 
the Court, whether the construction placed by the 
phuntifis upon the charterparty was correct, such con- 
struction olaiminf^ freight on all but the enumerated ar- 
ticles and quantities, as a wool fireight. If the Court 
should be of opinion, that such construction was incor- 
rect, then the Court was to declare on what principle 
freight was payable. The Court was further to declare 
on whom, if upon any one, the expense of pressure was 
to fall; and if such question could not be determined 
upon the charterparty itself, then to declare what qnes- 
tion of &ct or usage arose. And it was further agreed, 
tibat the question of damages, and also any question of 
lact or usa^ between the parties declared by the 
Court to an&e, but with respect to such questions 
only, was to be referred to a gentleman at Uie bar, 
and the plaintiflb were to hare liberty to more on the 
rejection of evidence. 

Charmtllj Serjt., in the following Hilary Term, ob- 
tained a rule calling upon the plaintiffs to shew cause 
why the verdict should not be set aside, and instead 
thereof a nonsuit be entered, or why this cause should 
not be referred, pursuant to the terms agreed upon be- 
tween the parties on the trial ; against which, 

Byleg, Seijt., Martin, C, and J. Wilde, (Dec.8}, 
■hewed can8e,^The whole question in this case turns 
upon the construction to be put upon the charter- 
party. First, it is erident, upon the face of IL that 
the parties intended to fix the rate of freight in the do- 
cument itself. Their object was to obtain a cargo, con- 
sisting of a certain quantity of wool ; and a restriction 
ma put upon the quantities of certun other articles, 
not from any objection to the articles themselves, but 
to ensure the bulk of the cargo being wool ; at the same 
time, there must alw^s be a limited portion of other 
goods as dead weight, for the safe navigation of the ship. 
It is clear, also, that the bulk contemplated was wool, 
from the eUpulation, that 100 tons of bark might be 
shipped in the event "of there not being suffiuent 
wooT.** Then the words are, "that the ship is to de- 
liver the aame on bung paid fr^ht as follows," and 
the rates are fixed. Such a constmcUon must neces- 
sarily he put uyon this clause, which fixes the amount 
to be paid, as will make it co-extensive with the clause 
which fixes what is to be shipped ; and thus the mean- 
ing is, that the pldntiffa are to be paid for the wool 
brought home after the rate for wool fixed in the 
charterparty; for the specified quantity of bark, tal- 
low, and hides, after the rate fixed for them ; and for 
the residue of the cargo as if it had been wool. If this 
is not the trae constmcUon, and the defendant was at 
]ibert;{r to brins; home a full cargo of other legal raer- 
chanmse, and have it delivered to him, on paving for it 
the rate of frnght eamot at the port of fading, all 
these stipulations in the durierparty are perfectly 
nselees, and the only advantage the pluntiffs get by en- 
tering into it is, that a cai^go of something is to be 
brought home, and possibly something the freight for 
which would yield them a very inadequate remunera- 
tion. Besides which, it can never be contended, that 
the charterparty only intended to fix the fi^ight to be 

{>aid for the least important items in the cargo, and to 
eave the freight for the great bulk of it unfixed. Se- 
condly, the authorities are in favour of the construction 
here contended for. The case of Moonom v. Pooe, (4 
Camp. 103), a Nisi Frius decision, upon which the de- 
fendant viU rely, decided only tht^ tM shipping two 



out of three enumerated articles was a falfilment of 
contract which required the three articles or othe 

rds to be shipped. And Irving v. Cleg^ (1 Bin^ 
C. 63] recognises that ruling, Bot, admitting tha 
the defendant, under the words ** other legal merchan 
dise," was at liberty to ship goods other than thos 
n)ecified, the question still is, what freight ia to be pu 
for tbemt The pleintifis contend that Uie same freigli 
is to be paid as if the ship had come home empty. I 
TAomas v. Clari, (2 Stark. 450), the charterpartjr ape 
cified a variety of articles, and fi%i^htwas to be paid fc 
each separately by weight. The ship came home erapt^ 
and the defendant contended, that the proper measur 
of damages was the amount to be paid as freight, sur 
po»ng the vessel to have been laden with one of to 
specified articles which would have yielded the low« 
amount of freight. But Abbott, C. J., told the jur} 
that tlie proper course would be to estimate the freigfa 
by means of an average, so as to take neither th 
greatest possible freight nor the least. The plaintiRe 
however, here, do not ask the Court to go so for a 
tliat ; they are content to receive what the defendac 
in TAomas v. Clart was content to pay. Capper i 
Fwster (3 Bing. N. C. 938) recognises the rule as lai 
down in I%mas v. Clarhy and is a direct authority i 
favour of the plaintiffs. There, the words " other Ian 
ful merchandise" preceded (in the present case the 
follow) the recital of the enumerated articles, whic. 
were to be brought home at rates of freight specified fo 
each. Tliose articles were not provided by the char 
terer, and the Court held, that the freight was to b< 
paid upon average quantities of all the articles, vbethei 
the ship returned empty, or laden with a cargo o1 
articles different from uose ennmexated. As to tbi 
words " other lawful merchandise** meaning goodi 
qnsdem generis with those specified, there is no diffi- 
culty. [Maule, 3. — " Other legal merchandise" meani 
merchandise having that sort of legality which belong 
to wool, tallow, and bark,] If the goods bear an ana 
logy to the specified goods, they are to be paid for afte' 
the rate stipulated for those to which tney bear ai 
analogy: if they bear no analogy, then they are to b< 
paid for as if the ship had come home empty, or as i 
the enumerated articles had been shipped ; they mus 
be ejusdcin generis only to this extent, viz. that the] 
must pay the same amount of freight to the ahipownei 
Assuming, then, the plaintiffs are entitled to he pai< 
as for a wool freight, is it to be aa for wool pressed o 
unpressed 1 So fiir as the amount of tiie verdict ia con 
cerned, it !s immaterial, for a higher rate is to be paii 
for the unpressed than for tiie pressed wool, as less o 
the former conld be carried than of the latter, and i 
caiyo of one or the other would pay nearly the sam' 
freight to the shipowners. 

Channell, Serjt., BramuxU, and Sir Eardley Wiltnol 
in support of the rule. — The only plea upon the recor< 
is payment into court of \a. The breach of contract ta 
therefore, admitted ; and the question ia^ to what da 
mages are the plaintiflb entitled 7 — and the measure o 
them will be the amount of freight to which they wen 
entitled by the charterparty. First, the cases o 
Afoorxm v. Paffe (4 Camp. 103) and Irmug r, Cle^ 
(1 Bing. N. C. 53) establish, that, under the word 
"other legal merchandise," the defendant might hav< 
brought home a caivo not consisting of the enumerate( 
articles. [Maule, J, — ^That is hardly denied by thi 
plaintiffs.} In Capper v. Forgery recognising ThomA 
V. Clari, the words " or other legal merchandise" d' 
not occur in the charterparty. \}Vilde, C. J. — It wft 
agreed, that the ship should receive and take on boarc 
whatever lawful goods and merchandise the chartere: 
might cause to be sent alongside.] It appears, at al 
events, from the judgment of the Court, that the inten- 
tion of the parties was, that the ship should bring hoin< 
a cargo ooniUsting (tf all or some of the ennmaatet 



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THE JURIST. 



15 



.11 tfUm. Hei« it was not necesaarjr that the ship shonld 
bna^ borne a ai^e article of those enumerated. The 
pnaeipal m^ter decided in Oq^pcr t. Forstvr was, that 
the dttesdant had availed himself of a privilege, viz. of 
Sltnig np his cargo at St. Mary's, to • greater extent 
tbsB charteTpartyoontem^Uted. It is evident that 
ttai does not toneh the main point in this case. Se- 
eaadtj-, ttw defoidui is not nonnd to pa/ a wool 
M^i; bal that becm the intention of the parties, tbev 
coau Mod so in so many wwds. Ths mte to 
atirdy eoBfined to certun enumerated artleles; as to 
tlis tat oi the cawo, the charterparty is ^Umt. The 
dsAadsnt therefore, to pay for that portion a reason* 
aide qnantmn meniit fireight, or one calculated at the 
cBTrent rate of freight from the port of lading to Lon- 
dflB. Bat, thirdly, aasiuning tlie plaintifis to W right, 
and the defaidaot bound to pay a wool freight for the 
otkM- Icgsl mere ha nd ia e , then the damages are calcu- 
lated IB amHieoas principle. The defendant is eu- 
Btl ed to ladneo the damages by the actual amount of 
A* «m(s of DfiMure of the wool. By delivering a cargo 
ofnansBBd wod, so mnch as would fill the ship, he 
hare eomplied with the contract. The cnstom 
■i4kefiBtiB|ih^ the ahipownar incurs the expense of 
r"iBH|*> li dl vrants. It inisht be a gain to both 
paitia to carry the wool pressed, and, if so, both ought 
to bear the crease; bat, according to the plaintUb, 
tbe lA'fifiiiiliiif u to aeaid nnpreaaed wool, and they are 
t»^wit,aDd charge the defendant with the whole 
oaiL The most faToorable view which the plalnti^ 
an entitled to take is, that the contract wiU bear their 
aastraetiao as well as the defendant's; if so, the qae»- 
tiaa oagbt to be decided, on additional evidence as to 
earieB er othowiae, by a jury, or by reference, as 
ipBid ^on by the parties. At Nisi Priua parol evi- 
imm is s dmi w iWe in euch acsae. {.RtiberUmy.Fmwh. 
4EiBt, laO; ItiAertam t. Jaeison, 2 C.B. 412). 

Tim, C. J.^ — It aeems to me, upon the best conai- 
daatka I can give, that this rule ought to be dis- 
^Mpd. This charterparty i^tpeais to have been 
Bale (• lUain two objects : the one, to secure that the 
^ iLxld be folly loaded ; the other, to ascertiUn 
vto tkot shonld yield to the ahipo wner. In the case 
tfaihip gwng out from England unprovided with an 
•■twwd cargo^ to a Tery distant port, to fetch a home- 
nri (Bgo, it is qnite nnosnal, and I never knew of an 
■dastt ta which the cbuterparty, which stipulated 
•aJy ftr the latter, did not prescribe or seek to prescribe 
atfit^ to be paid in such a fonn and manner as to 
^MMe the shipowner to calculate what should be the 
pD&B of the cargo 80 to be brought home to Um; and 
li, «B the face <^ the instrument, it appears that labour 
bsB Wn Wsioved with a view to prescribing certain 
ate sf fre^^or modes of calculation, one would not 
^^eef te find any jirovislon whatever omitted for that 
aaaeh sught eonetitate the greater part of the loading 
<f thritip. Still, further, if provuion is made pie- 
■riK^ the rate of freight to be paid for certain goods, 
<nd the >hip|Hng of other goods is contemplated by the 
cbsrtopatty, and no stipulation is to be found as to 
(he jaymrat of freoght for them, one would expect that 
At pnsoibed rate of freight was, in some measnre, to 
be lae rale by which to ascertain what proceeds the 
d^oaair waa to ree^ve for bringing home these other 
flMMi nkh i B Sfi ee t to which no rate was prsieribed. In 
tw dttrtaparky the diip is to sul out without the 
Amiatt ptovidma an outward cargo. There is a sti- 
^htioB appUeabte to frei^t, and also a sUpulation 
that the certain aoay sign bills of lading at any rate of 
&t^jA— no matter what, but that that shall not al^t 
the rate in the charterparty. Now, if he is to bring 
bsaie naenDmerated goods, bow happens it that the 
^vtctparty provides for a bill of lading that should 
ifKi^ a certain rste of frvJght in respect of those goods 
via not to be the role of payment between the 



charterer and the owner? It was to be without preju- 
dice to the charterparty— reHBrring to the charterparty 
as to the place where was to be found the rule appHca* 
ble to the payment for goods shipped under a bill of 
lading which preecribea some ouier rate of freight. 
Now, the charterparty provides that the ship should 
go out and be loaded with a full and complete cargo of 
wool, tallow, bark, or other legal merchandise, restrict- 
ing Uie quantity bark to 50 tons Ibr broken stowsge, 
thequantity of tallow and hides to 80 tons ; and the whole 
cargo is to be delivered on making a certain payment. 
If that payment is expready mentioned in the charter- 
party, it is difficult to suppose that it is to be oUculated 
by some other rule than that which the charterparty 
provides, the words being, " on payment as follows." 
The defendant here rei^oires, that the homeward caivo 
shall be delivered to him, not on payment of freight 
as follows," but on payment of freight after some 
other calculation. It is said, a reasonable freight ; but 
what is a reasonable freight 1 If a ship Bhould happen 
to be at Port Philip seeking a cargo, not having gone 
there expressly for that puipose, or under any contract, 
or eallB there on her vray home from India to do tiw 
best she can, the current freight at that time might poe- 
nbly be a reasonable freight. But would it be a rea- 
sonable freight for the owner of a ship, which went out 
from England without a cargo, to receive one at Port 
Philip, and to bring it home 1 What, therefore, is to 
be the test of reasonableness in such a case ? It may be 
said, a reasonable rate of freight at the place; but that 
means to ships which happen to be there, and which do 
not ^0 out from this country in anticipation of being 
provided under a contract with a cargo. Reasonableness 
thus becomes too uncertain a test to apply to this case. 
The cargo ts to be delivered **on payment of freight as 
follows.*' These words precede a specification of certain 
article^ for which a certain amount of freight is to be 
uud ; and (whether the words ** other legal merchan- 
dise" mean goods ejusdem generis with those before- 
mentioned, or lawfal merchandise, without reference to 
any description of goods whatever) no provision is 
made, nor does the charterparty contemplate any 
agreement, for freight to be made at Port Philip. And 
it is obvious that if a ship is to take goods thence, to be 
brought home upon reasonable freight, that the freight 
would be agreed upon there, and not left to be agreed 
upon when she returned home. That is not the com- 
mercial usage in adjusting freight. It appears, then, 
that the parties here have agreed that the ship should 
go out; that she shall be fully loaded with certain 
goods, (that is, either the specified goods and others of 
the same kind, or any others), and she is not so loaded. 
How, then, are the damages to be calculated for the 
breach of contract? To ascertun this, we must endea- 
vour to find how the parties would have settled if a 
cargo had been brought home according to the 
charterparty. That, it appears to me, states all 
the payments to be made: none other are antici- 
pated or left open; for it says, "payment to be 
made as follows; and then the rates are given, to be 
calculated according to a certain rule. And, according 
to copimercial usage, the charterparty would be so 
framed as to enable the shipowner to judge whether 
the voyage was worth his undwtaklng or not; and it 
would not leave it men to the charterer to bring homo 
goods, the freight for them to be pud according to 
some uuprescribed rate. It seems to me, therefore, that 
though the shipper might bring to the ship any goods, 
(taking the largest construction of which the woras are 
capable), yet that the rate of payment on which the 
cargo is to be delivered is distinctly described in the 
chuterparty. Then the plaintiff's say, " Calculate the 
rate of freight according to the terms of the charter- 
party In the manner least favourable to us and the 
most favourable to the shipper, and we are content to 



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THE JURIST. 



1w paid aeoordiBg to calraktioii, Slup the pm- 
mitted fiaaBttty of tdlonr, of hiAm, atd of oarlt, and 
Bve m tbe mdglut as upon wad for ih» Beaidna, 
because opon the faae of the cbartorparty a eaigo of 
wool was catttemplated ; wool, tlieB^re, wtU fomidi 
the baeia of the caundaiioB." The plaintiffi) appear to 
me at leaat ntitied to that for which they eeQtead,oon- 
■knting the cfaarterparty independently of aal^ority. 
But I diink the eooatmcUon vrhiA I nave jnat stated 
fa aecording to « sola and an aathorit^ wnith aaglit 
DOW to be conrideffed aa astaUfahed. la the eaas of 
2%MMH V. Clari <md Todd, which was decided in the 
year LB18, thirty yeats aj^, a owtain rule of conrtruc- 
tioo was fasd down^and has heem reoogmaed atnee; and 
I «^{wehend that tkene is nothing of naore importswte 
to coBimerce fltan that the rales of law adatmg to tha 
aotBstrnction of -commercial in^Tomentae^ttld h% made 
aa certain as poaeibte. It was said in one of the insur- 
ance cases not long ago, in this coort, tikat the ia- 
CMased valoe giren to toe owner's Mods by being ear- 
BMd from one ^ace bo anether wonLd be iosnted under 
tha name of treigd^t, bsoane it had been ao decided 
before, forssdiapeiiDdof timathatitnughtTeaaoMbly 
be Boppoaed, that penona wteriag into poUaiea gf in- 
anrance most aontompfate ndh a omatraatian.** So I 
wfy here, 1^ notiiiag can be mm miacbioTona tlua 
to make a rule a^ear lUMsertain (ercent on TCzy rab- 
stantial graonds) wtuch has been laid down for woA a 
kogth aFtime,taat the poblie, interested in tJw brna^ 
^ eemneroe to which it relates, may be mppoeed to be 
•ware of k. Now, in Thomuse v. OUrk, rt was laid 
dawn, that tlie fteight must be estimated by an average 
M the enmnemted articles. The fdmntiffii here do not 
require us te so so &r as th^ but cMm, wi^in the 
anthority of that ease, fre^t apen a consbmtien lees 
femmble to th«aselT«s. The pruwtple of that case ie 
•ftwwards stated, and the eaae eitad as an au^ority 
for that ruie, in Lord Tanterden's Book en Shippiiw, 
(p. 278), p^lfabad twenty years ago, aa4 which, as is 
well known, is in vety genwal nae, not onl^ amoagat 
fawyars, bwt amongst the commercial man of thia city. 
Than comes tbe case of Gapper t. Fbrgter, decided in 
this court, in which TAmmm v. CKonfc wae reviewed, and 
the anthority of Lord Tenterden's Book on Shipping 
lefiHred to by Tiadal, C. J., in the foUowing words: — 
" The opinion expTMieed by the vwy learned aod ao- 
anraie writer at the law oi ships and shipping, referred 
to in the course of the argnaaMt, and t^ ease of 
f%cma9 V. Clari, the dscisiw of which was not appealed 
inaan by any moUoa to the omiit, utpears to us to lay 
down ud eatnUish a rale whkli la at onea jost and 
maac n a h le. and nay ^ly be infeired to meet Ae in- 
tontiMU of the eontmctingpartiaa." Thatde^on wm 
ikrvm yean ago. St is upon these ewes that I have 
formed my opinion in the preaent instance ; and it ap- 
poara to mo, undoubtedly, that the parties here have 
mtended that we should not have to inciuire into laxy 
ieai(«ablenefls ti! frmght, or into any rarovmstances 
dehors the dttrterparty. The chuterparty gives the 
rule— aaoertam what is the capan^ or the ship, and 
then, in the case of a breach of oontraet, ealoolate the 
damages upon the focrting that the defendant would 
have performed the eentraet in the way most favour- 
able to himself, and least fovourable to the shipowners. 
I Aink, ther^ore, that the inindple contended for on 
the part of the phintifi^ is the comet principle; and 
tfart tha amouBt af tha verdict whldi they mn eb- 
taiaad ought not to he dfatarhed. With reapeet to the 
cost of prsariag, the queiM(m for the Couit ia, whether 
it should be sustained by the riiipowaer or fey Ae 
lUpper. If the former, then the diarterer or Clip- 
per ought to have a reduction in reapaetof the quantHy 
of wool upon which freigfat is allowed, which, not being 
shipped, of conne waa not w sea c d. Tha ohartamrty 
afpemtaiMtobetotaUjrflQaBtintheiKli^ TheM 



ii nothing <m tha ^oe of tha dmitsiMrty wfaii^ wl 
enable tlu Court to oome to ihe oonefuMon w]m» ob^ 
to bear it. There ia no aaabiguity : t^ nubjec^ 
whflfly passed by— <left, aa it asema to me, to ba ^indi 
by other cironmatattcaB, and not at all entering with 
the tatms of tbe osntntot botweoD the parties.^ 1 
doubt is raiaed, to admit of parol evidoiee to cnlaia i 
and, indeed, were parol endcnca admitted in thia on 
it would be, not to r«aoro or to soi^ain, hut to croa 
a dotd»t. There ia w> gmnad to wtarh the vwdiet « 
tiie ktter point, and laa mle mwt ba discharged. 

Maolu, J. — I also think that this rale oi^^^t to ! 
diadmrged. The ofaattamrty is not wiAowt aon 
diftoul^, beeaime, aUhoo^ i^ ai I think, expreari 
PORBita uie ahartater to famieb a caigo of other goo 
besides wool, tallow, hides, and baric, it doea not, i 
exprew terms, paoride how freight is to be paid for ti 
otiur goods ; at the same tima^ it menUms ao mm 
pftr ton do* Aose ennaaraied. Praliably one reaai 
why that provision might lis omitted is, that It veeni 
have neipurad a ^peculation upon an inimenae mdel 
of goo4» Aat might be shipped. The quertaoa, has 
ever, whether, ftnon tha woids of the wpi-aaa stipt 
IntiMy or the raaaeMtbla intandmcwt of Urn wmrda, «■ 
can sea what the duatwpartv iaitanded should ba pd 
for fosight in the arcnt <ff other gaods not enwmaraAi 
forming the «argo; and I tiiink we can see tbnt. Tl 
^pper st^nlates to fotnish a fall caivo— sipon tb 
v^uJa matter, I think, a fisll earM ^ goods of any kin 
he plomea, providad he does not uiip more tlian 80 ton 
of taUow and hidaa, w AO tone of bark, which might b 
iaomased to 100 tons nader Mrenmstanoes which it i 
Mt neessmry to notice hen; and he has a right t 
have that cargo delivered to him " on psy-meai « 
&dght as follows." Now, I think that, inasmudi « 
it istobed^vered ** on pqrmcnt affreight as fidlawi^ 
if the charterer p^s the firei^ aa follows, he baa 
right to have the goods delsvemd to him; md i 
tbare is nothlDg that foUowu aa to tha pavmeaA 4 
frmght, he would have a sight to have the ggtoi 
deliveaed to him without payment of any fmif^ 
Fat mstanoe, you conld ao eonstme ** paymeB 
of frmght as follows" to mean that there was n 
freight at all provided for a particular kind of good 
Iwou^t home, then he would have a right to tb 
sist on having Aoee goods ddivered to him witboi 
payiBg at^ freight; toeanae ''on payment of fre^^ 
as fo&owB*' seems to me to exolade any other pc^ 
OLeni of freight except m Mlows. Suppose tb 
oaigo to oansiat of uasanmemted merchandiee, wit 
tiw eanapticoi of 00 tons of bark: if ^ oa paymmit C 
freight m foilow^ means on payment of fr«^ht wfot 
the bark only, I apprdiead, in that case, the Mna 
would have a right to have lUs whele cargo, dOO w M 
tims of other goods, tmdered to him, on paymant e 
the i^ipakted amoimt of freight upon the 60 tona « 
bark woly. Now, I do not thmk that could have be« 
the meaning of the pwUes; «4 all events, that claaM, 
think, eieotaally excludes any reasonahle or any im 
plied freight— any freight, in short, not provided fo 
oy the charterpart^, beeanee he is entitled to bave th 
floods tendered to bui on payment of any freight tha 
18 provided as follows, whether reasonable or not; am 
I cannot eonceive, H was intraded that the whole oaigi 
of the merchandise du>uld be delivered without pay 
ment ef any frawht for it, Ithiiric thorn words mol 
be eenstracd, if th^ will bear that eonatruction, satt 
to wMvlde for the mMit of otter gooda gmenlly : aol 
ItUnkth^wlU bear that eoMtmotien. Conalderia( 
that we are dealing with a moeanttle instmineat, h 
which the substance of the matter, and the evidentl] 
pmdomsMBt intention of the puties, is, that the oaif 
IS to be delivered, and freight to be paid for It, wi 
are net eenetminad to en^aBioetgrof oonstniet^cea 
woald ba aypilad t» initwcala af « nan mgdai; 



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THK JUBiIST. 




1 af HdB^ fdwHraga, and doonmioto of that 

I ifciiA, tliM iftwi, Amt tlu propsr MMiwof 
mm ^mmm i% that^ «a a fiiU «mo bdw ddiiwid, 

Ac wMiid ini Ml to» twMnil^ te tlM axumb 
teMoCtkestipilatMB. bsiigao, the q«Hlioniii, 
t»«te aMnt of dmurnMthapUntiA oiitled for 
^•twckrf iMi t i mn If tfaavanwraralwaysof per- 
it, «M Uy tUnk^ in, vrtlmati^ the da- 

^ tktf tk«fdutificam to bt pst in UMpodtiDB they 

JhaTebeenbibadthedefeiiaDipeifonadtheeoD- 

iwtaithawKf jMatbwtbMunBatobimad^wd the 
Ai^MvCuU* to thorn. That itthe KauraUy and nni- 
■■■ II t aa il roie, T tfaiiik ; and that ia all that 

- .... ... Whf*tetlw» 




i iM j th iw g » tfcia moi gmta nim Ja h ii l with any othar 
' 'wtlMatber; 



toda^deomvigr 

W9 waaj dadda aeooadiii^ 1» what the 

J wt«t to weira, and aBcaading to a wife 

wiiiAcataiB^bdaa^taalnBedaMofMMa. Qmb- 
Ina arii^ nadar difimot arts of dnwnitauMNa, 
»4a whii Mghfc to ba the jmcr anMUrt of damn. 
BaAapltaMaapoEtwlian ihe ought to hwv loiidcd 
iiiiiK Mr aad tftera wore gooda than wkfeh 
' ^ ^ pB* on board, w« Bom BopMie ^the 
ta- mig^ periiapa, hare had hu ohofoe of the 

r«rt^then«»a«DnapoMibULtyof hio loadfmr 

wtet afvtinilar kind ; that tha good* thm wen the 
jmwilih , tha aoai oocto— to hia, and tberooet 
MMfe to tha afa^wner: or that they wen at the 
^ vcaoMitf of tha aoaW or somewhere interme- 
Ma. M joa eoBld aiiaw that Aero wbi a psrtloiilar 
ami tt a»o tbere, wfaU he «mld hare got and 
p i ihapa the M O M U Te of daaMgee might he the 
.wilt of thst cavge. Birt, if there won bo 
the pwC, «« Most aappeae a diffiewnt itata of 
— j»— dutacttwo waanotmpplied becanee then was 
■HteMply; then, it may b«, you may t»kf an artr- 
l^efafithe dtfihwat kind*. And I think it wm in that 
■V^peiaUT.tbatLoadTanterdea'eidee of avenge wae 
■BtBuri at— tha* jon miMttakeall ponible BOppeeitions, 
lli|uUy Uw, of then being diffennt khida of eanroes 
«» ht ihmed, when the tnith is, that then wm no 
mi thostahlnruiavei^ yon an to treat that 
-imim m which the oentnet, if performed at all, 
-—Ihan bees pvftmed; bntmehlaMt^gcHnny. 
■h^ efdeeliagiritheoiitneta. It Is Bot ncoeBn^; 

, to go apeaithat, becnaai, conatniHw tfic dbar- 

««e to pay freight on the temuwhidi anin 
L^pabtod, at any rate the phuntiffBareentitled to 
— Ii ID ahiefa they claim. Then, wiA i^peetto 
ttepo ceef ^ n aai n g, I do not think there in any anv- 
■fl"*/^ «< «il to let in parol eridenoe or evidence of 
w to pK«u^. It is olear upon the ofaarter- 
p^, that preaMd wool and aoprcBeed wool an to be 
■■idcred aa two kinds of goods, eldwr of which 
ftBAai t iiai may pi ea uit to be carried in the state in 
nidkicie. i do net si^theT an not to be weighed and 
*«id; ttoe nay be a little diffracnee as to weighing 
MAswagc; b^ they an to be carried aspreend or 
■ I I as ml wooi^atdigereatratee of freight. Thecalen- 
Mtaa waa pnihably nade upon tha idea that a ostgo of 
■B waf the other woald p^ pretty mndi the same, and 
Mm is oothtag to shew that then wmild be any dlf- 
Mee. A ten wei^ ■ to be eartled in either case, 
mi then waold be ftwer tons weight oairied of nn- 
inasd than of prenad wool. But, however that may 
I naeeiTe the jma sin g of the wool is the affair of 
pesno who dchvcn it to be osnied ; he has a right 
hlwee eatfaer pia s u ed or napreesed woel carried, and he 
■BBto cxRcias ih» option whether he p r essee It or not ; 
*U hadtoooae to iaearaay other expenae, as (tf warii-- 
^velBnov ityha >»yd» to, I as* na rmob. 



tiiaasAn,. on the gBsaad that the price of pnsBing 
dumld be dednoted, of makiag any aUantion m tha 
ntdict, or leaving tha aattar t» ha diBCBBMd or daoidad 
apen hf any ooeaha. 

WmuM, Jw— I um of the me wrfnisa; hat Imnsk 
ooafas, that,.bat the ease «f O^psr r. Jbntar, 1 
sheald ham Mt gnat difienlty m arriri^ at that 
eirinien. It seuna to me, that it ia ^nfeotly laaposrifah 
to naka this role ahsoliite without^ mftfaet,overniliag 
that casa^ The way in which the diffioaltr has pn^ 
seated itsdf to my mind ia this: it can haruy be omh- 
treverted, and, iadaed, it has aot been eoAtoomrtad aa 
the other side^ that the trae roeosanof dsaiagn in tiiii 
can is the leaat amoont of Mgfat whioh weald hsn 
bean payahle to the plaiatifib if the dsfaoda&t bad loaded 
at I^ Philip an naabjeetionablB oarfre. Tharefon^ 
that hada to two inqniuM: fint, what is aa ano1»ao» 
tlon^le ovgot and, seoandly, wliatia the least freight 
p^aUeoBttbythateanaof thacharteniarty} NaisK 
the ehartoparty ooateanpkte* that the ehnrteaer ahall 
lead a cooploto earn of wael, tallowi, bark, hMas^ or 
other legal manehandise. I oertoinly oannot find aay> 
thing in this imfemmeat which eenstnias the Coart to 
narrow the large meaning which is naturally to be pat 
npon the terms ** other Te^ merchandise." I think, 
for the pnrpon of considering what iaaa anobjection- 
able cai^ it is impossible to namw that phxase bj 
construing it to mean other legal merchandise ejusdem 
generis. For example, when They come to enumerate 
Uie limits within wbtch the other different articles an 
to be loaded, we itnd, amongst those arttcln, hides 
enamerated. IT we hold that hides &U within As ex- 
preaslon " other l«al merchandise," it is my difBcult 
to say they an ejnsdem generis with tallow or bark, 
fbr which and for hides tiie stipulated fi<eight is diflbpMi^ 
Tfaenfon It seems t* me, open the tone constrvetioa of 
this eharterparty, that we dafondant would not ban 
inenrred any bteaA of it if be bad loaded die ship with 
a ftill and complete eaigo of anv lenl merchandise 
otiier than wool, tallow, hidesi, and baric ; for instanoe^ 
if he had bronght the ship hoine full of cotton. Theft 
the next question is, what i» the least fnight which 
would be payable for that? Undoubtedly the plain- 
tiffs are bound to make out, that, by the tenns of the 
eharterparty, they are entitled to Uie fnight Uiat they 
claim. It IB not a question as to wbat they oug^ to 
have, but to what an they entitled by the tons of . the 
charteTpwty; and, cwtMnlyj oonuderiBg then an 
freigfato eanmemtad for certain qtecified articles, and 
no neight for any <4her than those spedfied, I shooU 
be under some difficnlty in saying^ wen it not for the 
case of Capper v. ForneTf that this was not a case in 
which the parties, having provided for the freight upon 
certain articles, have leit the freight npon others not 
enumerated undefined, because the only mode in whish 
the plaintifTa could entitle themBelree to a freight upon 
thoea articles would be by resortiug to the pnncjple of 
ejusdem generis. Bat the case of Capper v. Foriier 
certainly goes to the extent of deciding, that, at least as 
far as the calculation of freight is involved in the con- 
struction of the words ** other lasal menhan^," they 
most be undeieteod to mean other legal mmhandise 
ejusdem generis ; by which I nndecatand the Conct to 
mean, that, although they need nat necessarily be of 
the same quality of those which an enumented, they 
most at least have the ineUent of producing the same 
qnanti^ of f^ioht to the owner of the ahip. And that 
conatrnction bemg put upon the present oliarteaparty, 
it seems to me to justiQr tlie vvdiot which has besn 
found fbr tte pUintiBs, and which mvee to them, as I 
undMHtand, the least freight which would have bean 
payable if the oaigo had oonaieted of unobjectionable 
qaantiHea of tlw enumerated actides. It seems to me^ 
ihat, eimaisteiitly with that ean, we cannot disturb the 
verdict; and I think, for the f sas un a given by my 



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18 



THE JURIST. 



Lord, that it would be veiy inexpedient to unsettle tliat 
decision. With respect to the qaestion of the pressare 
of the wool, 1 understand the charterparty to mean 
nothing more nor leas than this, that if the charterer 
chooses to send wool in the more portable shape of 
pressed wool, he is to pay a penny hal^enny per pound ; 
if he chooses to send it in the less portable shape of 
impressed wool, he ia to pay an adTanoed price of the 
ughth of a penny per pound more. That being bo» cer- 
tunly I tiunk there is some difficulty in the case, inas- 
much as we do not know what would have been the 
exact amount of the frright if the ship had been loaded 
with the limited quantities of the enumerated article^ 
except wool, and the complete residue of the cargo had 
consisted of nnpresscd wo». But that is a point which 
does not seem to have been controverted at the trial ; 
and it seems to have been questioned only, as to whe- 
ther, looldng to the terms of this charterparty, or 
without the aid of parol evidence, any allowance was 
to be made for pressure. I do not think that point 
arises npon the construction of the diarterparty ; and, 
there&re, that it is no objection at all to tbe puuntim 
keeping this Terdiot.— jBtt/« diteharyed *. 



FAEB06ATZVE COURT. 
Bablbt «; Thk Eabl ov PoBTABLnrarox.-— Jljbv. 25 

A Oodieilt vrittm the sole Legatee therein named, in- 
aceuraUlj/ worded, and not produced till some Time 
after ike iVill, which had alto hem m the Potieuion 
of the I^gatecy pr<mounced for tn the Abamce of En- 
denee direafy impeacAinff itt VaUdi^. 
Lord Partarlington died suddenly of a disease of the 
heart on the 28th December, 1845, leaving a will, bear- 
ing date the 11th April, 1844, and a codicil, hearing 
date the day of his death. The will was proved in 
common form on the 26th February, 184G. by the exe- 
cutor, no notice being taken of the codicil, which was 
afterwards propounded by E.W. Barley, the sole le- 
KBtee therein named, and opposed by the residuary 
legatee. This codicil was written by £. W. Barley, as 
pleaded, by the direction and at tbe dictation of the de- 
ceased, and was in the following words:— 

«fi..s.) 

I, John Dawson, Earl of Portarlington, ^re and 
bequeath to Ellen Wbittaker Barley the sum of 300/. a 
year for her life. Also to be bought for her the house 
situated 10, China-terrace, Kenmngton-road. This ia 
my last wish and testimony, to be done for her after 
my decease, out of my estate in Ireland. Id case I 
not live to fulfil these my last wishes. 

" POBTABUNQTON. 

'* Witness my hand and seal, 
this day, 28th December, 1845. 

" EuuDBm Barlbt, 
Sabah Ouveb, 

" Mrs. Buley and her servant bdng present, at Lord 
Fortarlington's request, to witness this deed." 

The deceased left no property of any description in 
England, and at the opening the Court intimated some 
doubt as to its jurisdiction ; hut the point was not any 
further raised or diacnssed. 

JewMTy for tbe codidl, Mvned, that the evidence of 
the attesting witnesses establidied the execution, and 
was u n sh ak en by the cross-examination; that the 
handvrriting of the deceased, although denied in the 
answers, was not denied in pleading ; and that tbe exe- 
cutor's refusal to oppose the codicil was an admission, on 
his part at least, of its validity. If there had been any 
delay in bring^g forward the paper, that was fiilly ae. 

* CoUomb, J., bad left tbe court. 



counted for by the attempts which the legatee hat 
made to effect a compromise ; and that she was justifiec 
in making those attempts by tbe circumstances of tb( 
deceased, and her doubts as to the validity of a pape] 
prepared and executed as the one propounded was 
Lamy, that the mistakes apparent on uie face of th< 
paper were the natural result of the huiry in which i 
had been drawn np, and the iguoxanee of the writer 
and that tbe deceased himself lud not thought it wortl 
while to correct them, considering the instrameut a 
merdy temporary. Greater care would have beei 
taken to make the codicil perfect in form and language 
if it had been a forgery. 

Harding and BaSfford^ contra. — Every presumption i 
against the paper : it is written by the legatee, attestei 
by her mother and her mother's servant, la full of mis 
takes, and the evidence in aopport of it isoontradictoiy 
It cannot be believed that the deceased would have pa 
his name to a paper beginning vrith tbe words, 
John Dawson," occ, or contuning such expressions v 
my last wish and testimony,** and called a deed. H> 
had lived for eleven years with tbe l^tee, yet it i 
only Ml the day of bis death that he thinks of prorid- 
ing for her; while the vrill of 1844 eontuns proviaoo 
for persons towards whom he stood in the same zelatiw 
and has not one word respecting Barley. The ngnatori 
may be in the deceased's handwriting; bat, in a case si 
suspicious, mere evidence of handwriting ia not suffi- 
cient. The instrument should be shewn to have beet 
in existence during tbe lifetime of tbe deceased, and to 
have been recognised and adopted by him. 

Sir H. Jbnnbr Fust. — The Court feels no difficulty 
in this case except upon one point, that is, the late pe- 
riod at which thts P&pfli^ is brought forward as a codicil 
to the will of Lord jPort&ilington. The dreumstaoca 
of this case lie in a vuy narrow compass; and the 
umple question to detoinine is, whetiier the evidence 
produced in support of the psper proves that it was in 
existence before the death of Lord Portarlington ; for, il 
that fact is once established, it appears to me that the 
whole case is disposed of ; for it is admitted that Lore 
Portarlington was in full possesrion of his mental &cul 
ties, and tuUy capable of ^ving effect to any din>o«tioi 
of his pro]>erty that be intended to make. And Uii 
only su^f^ion made, or which can be made, is, thai 
the witnesses are unworthy of belief; that the papei 
was not made under the ciroumstances they state, and 
was not in existence at tbe time of the death of Lor^ 
Portarlington. What is the history of the pafwrt Th( 
paper, npon Uie face of it, has several incontistendes 
and theimproprietiesoftliephrBseolf^are, ashasbeel 
said, curious. Ijord Portamngton is stated to havi 
read it over, and be made no observation upon the ex 
traordinaiy manner in which it was worded. It u 
possible this may be accounted for by the circum 
stances under wnich it was made; therefore, it i 
necessary to consider what was the situation of Lort 
Portarlington with respect to the person in whose favoni 
it was made, and the circumstances nnder which it i 
suggested that the paper was drawn up, executed, su( 
attested. It appears that Lord Portarlington for sonii 
years — a considerable number of years — bad cohabitei 
with this lady, the daughterof the persons in the housi 
in which he eventually died. That he had considecaUi 
confidence in her b established b;^ the fact, that the wU 
of the year 1844 was deposited with her for safe custody 
closely sealed up; so timt of tiie contents, from thi 
mere possesrion of the paper, she would have no infor 
mation whatever. Now, for the last two years, it shoulc 
seem that the intimacy between these two parties bac 
been a closer intimacy than at an earlier period. Fo 
these last two years there had been such intimacy con 
tinued bv Lord Portarlington at the house of the fathe 
and mother of the person for whose benefit the codici 
is made. He had udged in the house, slept in tbi 



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19 



hautf bmrded in the hoow ; and daring the whol« of 
tint time it does appear that His. Boriey and her 
dmgifater had also parted with some of their jewels and 
«thsr thiags in order to capport Lord Portarlii^ton, 
and tlut be had never made any repayment, or made 
tba any remonention; but that he had told them, 
•whm he went to lodge ther^ th^ they would hare 
man tranUe Uian they could expect; that he wasabont 
ning asonef money upon hia estates, and when that 
wak «i vMtney was raised, die would be pud fw what she 
bad KSftoied on his behalf and for the lodgings he 
hadaen»«d. Nothing can be more natnial than to 
xtppoae raat be would make proridon for a person with 
■wiam he had been connected for this period of years; 
aad I fed no difficulty npon the point, that he made 
M pmiBOCi for her by the will of 1844, becaaoe at that 
tiac the connexion was sabsisting between them ; and 
thm docs sot appear to be any room to suppose, that 
it weald at that time be speedily disaolved. I can, 
thenfine, well ondcrstand, that, although Lord Port- 
■rimgtnn might hare thought it right, at the date of 
4a wUl IB 1&44^ to make provision for a penon with 
•^am. ha had piimouly carried on the same kind of 
MMenon; yet that, with reference to Barley, this 
Aedd. hm beoi postponed to a later period. The 
■other svcaxs, that though there had been no attempt 
to proridr §ar her before, jret that he frequently de- 
doM ik iatatkok to provide for her; and one can 
mmlf Bsdastand, conaideriDg the situation in which 
^ BoblentMa was placed wiui respect to his affiurt 
thai he had not detramined whether provision should 
be Bade by diarging it on hb estates, or out of that 
bad whics he expected to receive from the monev to 
be niMd OB the estates. I feel no difficulty, therefore, 
m liat fomtt that no nrovinon was made for her by 
fka wilf ef 1S44. Bat, by the wiU of 1844, Colonel 
T>iMir was ypointed executor: he was the brother of 
lesd Pagtoitngtnw^ uid TOOTcd the will, but he took 
aatiee of the eodicil. i do not exactly recollect the 
date «f the probate of the will, and was called upon 
aftewM i b to take probate of the codicil. Now, to tnat 
decree Colgnel Dazner appeared by his proctor, and 
nhaijled by the proctor to an asngnation npon him to 
tike prabale of that codicil. He makes no objection 
whatefcr on the ground that this is not a codicil. 
Thtmb his proctor he submita to Uie assignation, and 
fho«{a,peritapa^ it is not so direct an acknowledgment 
e( tie vilidi^ <rf the codicil as that of his deceased 
faettffsif he bad aud, "I am ready to take probate 
if i^'yvt he aabmits to the aariniation upon the proctor, 
ehich ■ eoBtmned three or four days; and then, a 
canst haTin^ been entered on behalf of the residuary 
leptec, the c^oestaon i& brought before the Court as to 
the Tsj^gty ef this codicil. This is a circumstance not 
to be laid oat of Uie consideration of the Court when it 
Maei to ensaider the arguments used agunst the codicil 
— ^gaost its existence, for bo it must be argued, st 
the death of Lord Fortarlington, and that it was not 
nittca, IB the manner stated by the witnesses, upon the 
SatJi December, in the year 1846. Now, what are 
the ctmunstances under which it commences? Why, 
Lad Portarlii^ton had been unwell for some little 
tiM before ; but this morning, it se«ns, that both Mrs. 
Bat)^, the nH*tl'f*' «f the party in the cause, and the 
sonat gid in the boose, obsernkl that he was looking 
in, and thnr thought frtnn his manner that there was 
nae apprcSbouion that it would not be long before he 
VIS reinoTed from them. I am only stating the facts 
^oaenUy now. He on that morning resolves^forthat 
M the story — to have the paper drawn out. He desires 
the mother will go upsturs after breakfiut; the servant 
pi. is also told to go upstairs; whether she was told 
Mfenhand that she would be wanted, or at the time, 
be a matter not of serious importance ; but the 
ta. is, daring the writing oi the papw, either before it 



was begun, or dnrinff its progress, the servant giri was 
in the room, as also His. Barley, and Lord Portarungton, 
and Hiss Barley. Now, Lord Fortarlington is there said 
to have dictated this paper, and the words used by him 
were written down aocordiogto the impresuon made on 
the minds of the witnesses. He proceeds, when the paper 
is written out, to the execution of it. Acoordin^y. 
there is " Fortarlington " subscribed to the paper, and 
the seal, with the arms, is placed at the left-bana comer 
at the top, and not at the usual place where you see a 
seal attesting the execution of an ordinary codicil or 
testamentary ptyper. Now, then, I ask, in tiie firat 
place,!is it Lord Fortarlington's ugnatare or not ? There 
are two witnesses who swear they saw him write it : 
there is the disbelief of the residuary l^tee, for I give 
him the benefit of the answers, that it u the signature 
of Lord Portarlineton. If so, why is there not some 
evidence produced in sopport of nis opinion 1 Can I 
do otherwise, in the absence of such evidence, than take 
it as a fact established in the cause, that this is Lord 
Fortarlington's signatore? There is nothing, it ap- 
pears to me, to controvert this • and, if it la Lord Fort- 
arlington's signature, what, then, is the condndonl 
Why, that this paper is fonnd with Lord Fortarling- 
ton's rabeoription upon it, and a blank left at the top 
and at the bottom ; and for what purpose this conld be 
written by him no attempt has been made to explain. 
Now, under these circumstances, I am satisfied that this 
is Lord Portarliogton's signature. What am I, then, 
to consider but that this paper was written at the time 
at which it was suggested by the witnesses to have 
been written ? It was suggested, the story could not be 
true; the contents of the pa^r, it is sua, prove ttiat. 
The paper most uudoubtedly is worded in an extraor- 
dinary manner, and one conld not suppose that the 
paper was the compodtlon of a person of eidncation. It 
begins in thia form. There is a seal at the left-hand 
comer at the top : — " I, John Dawson, Earl of FortaT' 
lington." The first observation 1^ this Is extraordi- 
nary: it could hardly have been dictated by Lord 
Fortarlington, because it is not in the usual way of 
describing himselfi The proper way would have been. 
*'Johu Earl of Fortarlington," and not "Dawson.'^ 
It is possible the witnesses may not be correct, as I be- 
lieve they are not, that every word was dictated by 
Lord Fortarlington ; and this party may have been in 
the habit of writing in this way, John Dawson, Earl 
of Fortarlington." She had been in the habit of writing 
for him in 1840, and may have deambed him in this 
way. I do not think much of that, and of the other 
circumstances pointed out, '*Give and bequeath to 
Ellen Whittaker Barley the sum of 300/. a year for her 
life ; also to be bought for her the house, utuated 10, 
China-terrace, Kennington-road." That is the house 
in which he lodged at that time, and owupied by the 
fdther and mother of this person. It goes on, " This is 
my last wish and testimony, to be done for her alter my 
decease, out of my estate in Ireland. In case I not 
live to fulfil these my hut wishes." And this ia said to 
have been written from the dictation of the Earl. It 
is said by the witnesses, and the mother says, she be- 
lieves she did not write anything down that was not 
expressed by the Earl; and, with reqieot to the word 
*< deed," which is part of the addition to the testimo- 
nium clause, the mother says, she believes the word 
" deed" must have been used by Lord Fortarlington, 
unless her daughter mistook it — misapprehended it. I 
think it is not impossible the daughter may have mis- 
apprehended " deed," or whatever word was used, as 
well as many of these expressions used ; for, though it 
is stated to have been written down as dictated by the 
Earl, I think it impossible he could have dictated, 
" My last wish and testimony, to be done for her after 
my decease." Fossibly he used the words "my last 
will and testament;" and these words may have been 



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for will. Bnt It is not so nmeh le&ed i^mi by e o mi p a l 
who sf^ued ttds cms, tiwt tbe wokIb shook! be takea 
dawn in this fosaum the wnt of observation of ths 
words vdien Lad Portarii^ton is siid to bm rskd 
ihoD ever. Thai m the strengtii ef the obesmtiea. 
I flhiMld haire thnagM there was mat wAght in H, if 
Alls was aot a transaetkm prensd vpm him by the 
apprehension tiiat his deaith werid not only be sndden, 
hut tlMt it wonid ^eedity take l^wej »id this was 
not intended for a final disposition ef tb« ■pnn&ty, 
beeanse it is in the evidence of the wttnesses, rant it 
was his intention to tAe the pmer wiA him, to ealt 
npon his solicitor, as he was in the h^it of doin^, en 
Snnday, — this was Snnday,-— to hare it pot in regntsr 
form. Therefore, I oan easily cenoeiw, though the 
expressions are i&aemfate, sad piobaUy without any 
capability ef hanrinff any meamng afllzed to 

them, yet I em eaiuy eono^rs tiiat a feiwm in the 
dtnation of tUs nobleimn at ftns time might pass over 
tluse inaeeanKnes wttboot obeerrfaig; lAem, it imng his 
intention that the paper should not operate, nnless that 
took place which did take ploee — hts death before be 
could hare an epportanity of having; reeourse to his 
sollcHor. I think these circnmatanoes an quite suffi- 
oient to make me satined upon these points of the 
appesTsnce and of tiw phraseology of the paper. Hav- 
ing satisfied myself by the evidenoe, on the one side 
direet, and the want of any evidenoe to cenBteTaoi tt 
on the other, that the subseriptioa ** Portarlington'* is 
in the deceased's tumdwrtting, I say, taking eXl these 
obcnnwtanoes together^ I am satisfiM in my mind, that 
these hnoenraeies or want of obssmUon do nottend 
to Aake the porftive teattnMny that the paper was 
written down, if net !n the words given by hord Port- 
arlington, at least the snm and snbstenoe of what he 
itttetMed to do for tMs person — ^that is, to give her 3001. 
a year, charged on hh estate, and -to direet the pur- 
chase of tbe house in Chinarterraee, whtn-e the par- 
ties lived. On these gnxmdB, it would be difficult 
fbr me to come to any oonclaeion against the validity 
ef that paper, signed by Lord Fortorlhigton, at that 
part where the signature would ooour If a dispe^tion 
was to be made, wrttten that day, if net tricen down 
in bis wMrda, yet eontainii^ the snm and sobstonoe 
of i^t he intended to 4e. Bnt tSieie is certainly 
one eirenmstanos tiiat does oeu a r tl wt 'is, this paper 
was not brou^tt forward till neaiiy two months after 
the death of the deeeased. The reasons givsn ftr not 
prodndng the paper, under tbe ranmnutanees stated, 
may not be altogether satisfiictory to the mind of the 
Court; and Court would have thought it tbe more 
nattrml eourse to pursue, undertheoireumstMioeswhich 
did take place, and which were brought to Miss Bar- 
ley's notice, that they should have referred to this 
paper at a mnch earlier date. Now, a plea was given 
in, in whiofa tt was saggested, t^at the parties (ana tlmt 
wonId go to ASeoi their character in a certain d^ree) 
had kmt back the will fimn the rdation^ for ^e par- 
pose or makiiw some temu with them. Now, this 
paper was in the oustodv of Miss Barley, havine been 
owvered to her by the aeceaaed ; and it remained after 
his death carefully sealed np. whether stu knew tiie 
contents of it, I think there is nothing to shew. I 
think the whole res gests shew she did not know the 
contents of the will, because the sole object of her in- 
quiry of Mr. Dover was, to ascertain whether there 
was any provision made for her by the will; that most 
cleariy appears by Mr. Dover's evidence. Now, it is 
evident, bo^ by Mr. Dover and Mr. Bengoagb's testi- 
mony, to whom the will was originally duivered, that 
there was a snggestion, on the port of Mn. Burley or 
her danghter^ that he uionld make tenns with tin teUr 
tions for giving up tiie iriU. It ahovld seem Aat ad- 
vertisements were inserted for ttie wiH, but this was 



del l r wed into tte pessearfoc of Mr. Bengongli a di^ 
tw« after Lord PortarllMtui's dea^, and he Se&rep 
h into tbe hands of Mr. Dover, by whom it wasopwae 
and 1^ whom it was given, in the first inBtanee, to M 
WattiMv ■ saiioHai^-«t leaat, he demred him to ei 
upon hfatt— and sAerwnnh ta Kr. Jackson, yfrho fa 
acted fai that capacity to file Ihiolly. Mr. WaCkbu V 

re to lurre fceen can of tbe auneribing wi tne aa oa ' 
wlB, and he was a psrson wlto, from tbe eiivnr 
stance^ could have spoken to the sBhacrtption. of lAt 
Portarlington, if there had been a reasonable don 
upon that point. But this is delivered to hfr. Dtrw 
without any snggestion beiiqr made to keep it bsek 
mi^e a bargain. The great object of Mr. Dover ai 
Miss Barley waste ascertain whetherany provision w 
made by will. Mr. Dov«r certainly does say he i: 
qmred of them, wtiether they had any letter to ahew 
Lord PortarUneton's handwimng. avtr, iHiether tlit i 
misapprehended the question, or wfaettier they did n ; 
connder that this paper, bring fak the handwriting 
Miss %rley, and oaiy suDserilm br tiie Eari, was a d- 
cument on which theyeonld Rly, I do not know ; ba 
undoubtedly. It is somewhat extnordinary, that A 
paper was net mentioned, or anything said to shew tfai 
there was such a paper in eidstence. The only pn 
table sedation is, that neitherthe mother nor the cfangl 
ter eonridered that this papn* was vdid in Itael 
What is it the mother says ? Aocordin|^ to her i mpret 
am it was not valid, because it was neither on paret 
ment, nor was there a stamp on the paper on which i 
was written ; and there is the addftimi^ cirennHitaaet 
that this was net intended as a final disposition, bat f> 
ms tehepnt inrmilarfann by a solicitor in a day <r 
two. But, it is cleaT, it was cum m nntcated to l^x' 
Heart, and by him to the fiimlly of Lord PortatflinigtoB 
as early as February. A negotiation should aeem tt 
have been going on in Febraaiy. Therefore, the otdj 
time to be accounted for is between the 28tn Decern* 
ber and the 23rd February, when the first communfca- 
tion was made on the subject. Perhaps, as the -Conn 
has already said, the account given and the explana- 
tion are not perfectly satisfactorv. Bat then what an 
I to do ? To hold that both these wftaesses are fn> 
volved in a conspiracy in their aceount of the prepara- 
tion of the isstrmnent signed by the testator, becanae ] 
am bound to say tt is ao dgned ny Mm by the evideDet 
produced, and by the want of «r!dettce to nuative Usai 
testimony t Am I to consider tfiat this is a ahricatEoD, 
ooncoctad, that then is no truth vHuttever in the story, 
and this must have been brought hito existence after 
the death of the testator ? I cannot for a moment en- 
tertain such a su^iestion, upon the testimony producCTl 
before me — tbe positive testimony, and the wsot of im- 
gotive evidence ^;«nat it, and the probabiH^ of pTo« 
vision being made for a person so circumstanced, and 
the situation in which Lord Portarlington was. I atn 
of opinion, clearfy and decidedly, that this paper is the 
instrument of Lord Portarlington ; I can have no doabt 
on the subject, and aeeordinily I must pronounce for 
it. Witiiout going further into the ondenee, which 
lies in a narrow compass, I aceordhigly pffOttonnoe fbr 
it ; and the veiy efrcamstance of Colmel Darner hatfng- 
submHted, as executor to this assignation, to extract 
the nrobate without any opposition on his part, and 
this twing the opposition of the residuary legatee only, 
tends to satisfy my mind tiiat I hove no other alterna- 
tive, from the stirte of the evidence before the Court, 
than to pronounce that this is a codicil to the will of 
Lord Portarlington, and decree probate of it to pass. 
That being so, the party who has propounded this has 
discharged the office which ought to have been dtschai^d 
by tlie executor; and she is, oonaequentiy, entttled to 
her costs out of Uie estate. 



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31 



PRIVY COUNCIL. 
IB^bn LoSDs Laxgdaix amd Cahpbbll, Baboh Paske, 

md tie (^uMcnuw of thb Ducht ot CoBinrALL.3 
fAmal fiom the Conrt of Appeeis fbi the Prorince of 
CBiada.1 

U*KxT t. BuTHKRF0RD^2>ee. 11 and 12. 

Araf grwftufi— Oiiwwfi'ii? CbMtra«(*— .Stof . tifFrm^. 

Titf fVcBcft e^abixtkad Ijf tie OrdooHonee de Mou~ 
fiM,n tit Tw 15G6, « ttimquenthf attend tic 
Criamimfn rTlfifiT. wierefy Parol Evidetue toa$ €»- 
MJJhm Uu I*roo/ of atl Contracts or MaUert ex- 
ttedm tie «Ste of 100 Umret^ "* ^ ¥ 

Ateidtmt, or kmtv ti«rv w(M a (hmmeneemaU m 
ffriH^ it M 20iyCT' Zaw of Canadaj Ivt tie 
AfHA Imm, mt to tkeAdmitnem of Parei Ewdmue, 
mnttibiM mil eomnwrnal Mature. 

mCmtrad eatered mt» witk Cmmutionere, appointed 
wrfnr mt Act of ParHamoit, to provide atone for 
mathe a Canmlj it a comroenual Matter. 

ifM^ifjl a Oanlraet wugf futf be et^ahU of idng per- 
fitmed kHUm a Year, yet an Agreement betu>een the 
CtetrmUr and another Perton, to tiarc in ^ Profits 

tHe Undertaiing, is not snd an Aareement at ^ 
41& SedMB qf tie Statute of Frauds (29 Car. 2, 
c. 3) tf renmd to be in Writing^ but wu^ be proved 
t^panl&idLitte. 

TUb wtt aa appeal from a judgment of her Majesty's 
Ceait of Appeals for that part of the proTince of 
Chasda fmaaiy called Lower Canads, affirming a 
limit oi her lUjeaty|B Court of Queen's Bench for 
Ae disbnet of Hoatnal, in an actioa pro bo<»o, brought 
Ij the mro o AmU F«ter BuUierfotd, anunst Uie appel- 
imi, Tbnas H'KbJp for an aeeoiint of the profits of a 
yaitMiiihiji stated m the declaration as havinsr sub- 
' between him, Peter Rutherford, the said Hiomas 




of the Lachine Canal, in the district of 
I; and for payment of one-third of such profits. 
!■ Ac jw 1831 the original action was dismiseed with 
ante w tbe Court of lung's Bench, at Montreal, the 
Gwt MBR of opinion that no partner^ip was prored 
•aheti^tcd. On the 20th January, 1837, the Pro- 
[ Ceort off Appeala fox the then proriiiee of Lower 
t Bmmad dut decision, bdng of opinion that 
• eD-partnership, as stated in the de- 
■M^aikd mnitted the cause. In January, 1846, 
I Cent of Qtwen's Bench, at Montreal, condemned 
icfakdaot to pay to the plaintiff the sum of 723/. 
lliL^d^ Mag (XM-third of the profits, together with 
irfhMt tkRCOB firom the commencement of the suit, 
esite of ait. The Conrt of Appeals affirmed that 
i; sad from that judgment of affirmance the 
1 appcil was bron^^t. It was agreed between the 
t to this i^ipeal, Uiat the only question for final 
uMtuA wa^ whether any puinership existed 
ktwMB the parties aforeiud; and whether the evi- 
itmen at the teapondent, taken in the court bdow, was 
legal and adnusnUa eriaeDce of such a partnership. It 
, that, by an agreement, made and executed on 
\SOi day of March, 1821, by and between the said 
H'Kay end Peter Rutherford of the one part, 
■MS Porteous of the other part, it was wit^ 
I as feUowB:— Whereas the said Thomas M'Kay 
■ad Peter Rutherford have jointly made, in their own 
BaaEDCs, a teoAer or offer to the engineer department at 
Maidnal, on bdialf of his Majesty, to execute and per- 
§num a laxge qniatity of mason work, at Isle aox Moix, 
im &e diatrict <tf Huitreal, comprising about from 2000 
te 4000 iMS^ at cot^ rates and pmea, whl^ tender 
« lAr bath «nee been aeeepled» en condition that the 
■id Thmatm Porteous shoold become the seenrity to- 
«Hria Vm K^cstjr in * «MitiMt to be ntntd into 
Toft.XIIL b 




for the perfiirmance of the said work. And whereas 
the said Thomas Porteous hath consented and asreed to 
be and become the said security, baring a ftUT know- 
ledge of the said tender. Provided always, Uiat the 
SMd Thomas M*fij»r and Peter Rvtherford would ad- 
mit him, the said Thomaa Porteous, to hold, possess 
hare, and take, and be entitled to the one undivided thlid 
part or share of all and every the profits that would ok 
might arise from the performance of the said con- 
tract and agreement so to be made and entered in, in 
which the said Thomas Porteous was to be named aa 
the security, which admisrion the said Thomas H*Kay 
and Peter Rutherford did readily consent and agree to. 
These presents, therefore, witneaseth, that the said par* 
ties did, and they do hereby in consequence, covenant, 
contract, and agree to and with each other respectively 
tn manner following— that is to say. that the said 
Thomaa M'Kay on hiBpartshallandwil],totheQtmoee 
of his knowledge, skill, and abilitisSi onremittingly at- 
tend, at Isle aux Nolx aforesaid, to the carrying on. 
conducting, and maosgbg all toe mason irork ud 
bnildiag, so that the same may in every respect be 
done in manner and in conformity with the tenor of the 
contract and agreement so to be made and entered into 
with the said engineer department; and the sud Peter 
Rutherford shall exert himself to the utmost of hm 
power and skill towards procuring on the spot all the 
materials required and found necessary for the carrying 
on the said work and undertaking ; and, in order that 
Uie same may be done with the least poadble delay, 
Mid in the most workmanlike manner, they, the said 
ThomasM'Kay and Peter Rutherford, shall, both mntn- 
ally and redprocallv, aid and assist each other In the 
management thereof, they shall reside at Isle anx N<dz 
for that purpose." "And it it Uuify exprcsslf <^reed 
and nndentood^ that neither tie said Thomas WKagy or 
the said Peter RtUherford thaU undertake, under aiyr 
pretext i^tever, any otter work than the one hereinbe- 
fore referr^ to, until the same shall befuify and finaik 
eomplked*^ M'Kay removed from Montreal to Isle 
aux Noix early in 1821, for the purpose of taking bis 
part in the sufwrintendence of the works, purponng to 
retoni home in the autumn, when the building season 
should be over, by which time it was expected thsi the 
contaact would be eompletedi It so turned ou^ from 
one cause or another, that the contract was not entirely 
completed by the end of the building season, when 
M'Kay returned to Montreal ; but it ai»peared firam the 
evidence, that by far the greater porUon of the wo^ 




Shortly afler M'Kay's return to Montreal, 
the commisnoners, under an act passed for making a 
canal from Montreal to the parish of Lachine, issued 
advertisements, inviting tenders for contracts for the 
supply and delivery at Cauglmawaga of stone for 
making the canal. The probable sum required for 
execn&u: the work was between 20,000f. and 90,O00J^ 
M'Kay Ming desinraa of nndertakinf this worl^ hnt 
the Ide anx Noix contract having oound both him 
and Rutherford to Porteoos not to undertake any new 
works until the completion of that contract, a meeting 
took place at Porteous's house upon that subject. Por- 
teous in his evidence, stated, " Tlie plaintiff and defend- 
ant met me in consequence at my house at Montreal, 
and, after deliberating whether Mr. M'Kay could be 
spared from the works at Isle aux Noix without loss 
to the concern, we concluded thai Mr. Rutherford could 
conduct it without him. I agreed on my part to allow 
Mr, M'Kay to contract for tiie Lachine Canal, leaving 
him to make such arrangement with Mr, Rutherfi>Ea 
as they should see fit. 1 do not know what todooe- 
menti were held ont by Mr. M'Kqr to Mr. Rutherford. 
I left them to make voiAx agreemoit by themeslTve.** 
queued that than wm no mitten nidoBoe m to 



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THB JURIST. 



what afiTeeroeiit was oome to between M'Kay and Ra- 
^erfora ; but it appeared, that, ^Hnrtly after the above- 
neBtioned meeting, M'Kay made a tender to the com- 
mlnioiMrB far providing ttte stone for the Lschine Canals 
Irhleh tender was accepted ; and snbseqnently two con- 
tracts were entered into, one dated the 21st January, 
1822, and the other the 26th June, 1822, between 
M'Kay of the one part, and the commisdoners of 
the Laehine Canal of the other part, regulating the 
quantity, quality, and price of the stones to be pro- 
Tided by M'Kay, and other matters relating thereto ; 
afid, for the due performance of each of those contracts 
by the sud Thomas M'Kay, James Leslie, therein 
named, was a security. Rutherford was not named 
herein, nor did he sign either of them ; they were 
rigned by M'Kay as the sole eonbractor. M'Kay pro- 
ceeded with both the Laehine contracts, and completed 
tiian in the year 1826, he atone having mipe^tended 
-fliose works, and ftan^ed ont of his own monies all 
tb« expeneee attendant thereon. Rutherford, wiUi the 
aemstance of a foreman, attended to the works at Isle 
aux Noix, which were completed in the year 1823; 
but it appealed from the evidence, that he never inter- 
fered in, attended to, or seemed to take any interest in 
the prt^reas of the Laehine works. The only direct 
evidence of the existence of the partnership alleged in 
the declaration was the parol evidence of one Henry 
Griffin, (who was the son-in-law of the said Thomas 
Porteous), the most material parts of whose evidence 
Wen as follows: — The commissioners of the Lachme 
Cual having advertised fsa tenders to ftunisb stone for 
said canal, the phuntiffand defimdant called on me 
to join them in the undertaking, and furnish the aeeu- 
required. That, after some conversation on the 
mbjeet, I consented, and procured Mr. Leslie, as my 
ftioid, to become the security. Tenders were in conse- 

aaence made, and accepted hv the commissioners, and 
le contracts entered into. This arrangement between 
plaintiff and defendant and myself, which took place 
about the latter end of the year 1831, or beginniiw of 
tJie year 1822, comprehended all undertakings that 
might be thereafter entered into in the works of the 
Laehine Cmai^ (in which they might be jointly inte- 
noted), which wore to be performed on theur joint 
ttocoun^ upon rimilar t^ms as those entwed into by 
plt^ntiff and defiBudant with Thomas Porteous, Es^., 
for the performance of extensive pabUc works for hu 
Majesty at lAe box Nolx, under an acte sous seing 
privee, dated 15th Match, 1821." Behig asked, What 
was to be done by platntifT, according to tiie said agree- 
ment?" he replied, '* He was to supointend and ma- 
nage, with the asdstance of a foreman, the work under- 
taken by him and defendant and Thomas Porteous with 
his Majesty's Government on Isle aux Noix." Being 
asked, " What was the consideration given by him for 
participating with plaintiff and defendwt in the add two 
eonbnctst" ne replied, " first, the procuring from Mr. 
Porteous his consent to the pluntiff and deMidant en- 
tering into the said G<mtrae^that being required by the 
saidagreementjdatedlfith March, 1821; and, secondly, 
obtaining security for the performance of the said con- 
ttacts with the commissioners of the I^hine Canal, I 
being also held for an equal proportion of any loss that 
might be sustained." An exhibit, containing the fal- 
lowing statement or memorandum, was prwloced in 
evidence by the plaintiff: — 

** Amount of cadi received . . £20,879 6 10 
XV. 

Cash paid . .£21,989 19 8 
Superintending . 1,382 

23,371 19 8 



2,607 7 2 
Ode-ihlxd . £BS6*U 9* 



This memorandam was neither mnied br M'Kav', noi 
was it in his handwriting. Upcm 6riffin bang aslced tc 
what the nid statement nlated, and whether ansrtUng 
afterwards occnired reflecting the s^ stafeemei»t» he 

replied, " It was rendered to me by the defondairt, ae 
relating to the said contracts witii tne commiauoners ol 
the Laehine Canal, and to the partnership that sab- 
sisted I)etween plaintiff, defendant, and myaelf ; tlie 
third part of the balance of the said statement — that if 
to say, the sum of 836/. 16f. 9i^. — ^wos pud to me by the 
defendant on m^ giving him a full release and dis- 
charge. The said statement was received on the SSrd 
or sSth August, 1826, snd acknowledged by the de- 
fendant on the following day." Much evicfence wa£ 
produced, on the part of the defendant, for the pur- 
pose of shewfaig, from plaintiff's eondnet, and nom 
nis expressions on varions occarions subsequent to the 
Laehioe contracts luTing been entoed into by M.*Km^, 
that he eould not have eonridered himself a parteer in 
the Laehine c<mtractB; and a great portion of the BrgtL- 
ment was directed to the improbability of such a part- 
nership, and of the truth of Griffin's evidence; bnt the 
only questions of law were: first, whether, according 
to the present law of Canada, the alltsed partnership 
contract could be proved by parol evidence; secondly-, 
whether, if the English law of contracts was to prevail, 
this case was not within the exception contained in the 
4th section of the Statute of Frauds, the boildii^ oon- 
tract not h«ng citable at being completed within tme 
year. 

Ji. Tuiu aad Biaheringtant In support of the appe^. 
— There b no doubt Imt that, aoeoraing to the Knaoftt 
law, which prevailed in Lower Canada prior to the 
Colonial Act of tlie 26 Geo. 3, e. 2, parol evidence wovtld 
not be let in to prove tids all^fed partner^ip. By the 
Ordonnance deMouIins, tn the year 1666, art. 54, it is 
directed, that, in all oases exceeding the value of 100 
livres, contracts shall be passed, by which alone proof 
shall be received of such matters, without receiving amy 
proof by witneeses, beyond what is contained in sack 
contract. The words are, " Pour obvier k multiplica- 
tion de fiuts que Ton a vn ci-devant estre mis en avant 
en je^;ement, snjets lb prenve de tdmoins, et reproohe 
d'ioeux, dont adviennent plv^uxs ineonvteiena ia- 
volntions de proems, aveas ordonne et ordonnon^ q^ne 
d*oresnBvant de toutes ehoses exoMans k somme on 
valevr de cent livres poor one f<^ payer seront pmmk 
eotaratt muvderant notoixes et tfimdns, par lesqndls eon- 
trata seiuemMit sera fiiite et i«f ftS tonte prenve des dikes 
mati^res^ sans reeevoir anoane prenve par t^oias^ 
outre le contenn au contiat, ne snr oe qui seroit all^gu^ 
avoir est^ dit on oonvenn avant icelui, lors et depais. 
En guoi n'entendons exdure lea preuves des conven- 
tions particuliires, et autres que seroient fiutee par les 
parties sous leurs seings^ soeaux et £critnree pnvies.** 
f Anciennes Lois Francaises, tom. 14, p. 203). This or- 
□onnance was extended by an ordonnanoe of 1667, art. 2 ; 
*' Seront passte aotes por^devant notdres, on sous sig— 
tare privte, 4e toiUn thorn excMant la somme on 
valenr de cent livrei^ mdme pour depots volontaires^ et 
ne sera re^u aocnne prenve par tfoioins contra et 
outre le contenn aux actes, ne sor ce que seroit allfigntf 
avoir i\A dit avant, hns ou depois les actes, encoe*e 

Su'il ^agit d*ane scnnme on vdeur moindre de osnt 
vres, sans toutefois rien innover pour ce recard, en oe 
qui B^observe en la justice des jage et consuls des mar- 
onsnds." ^Anciennes Lois Fnmf aise^ tit. xx, art. 2). 
The 3rd article excepts the cases of accidents and cases 
where there was a commencement of proof by writing. 
The ordonnance of 1666 had the word *' oontrats,*' and 
it was doubtful whether it was not confined to agre9- 
mmU : but this latter OKtMnumce omits the word ** eon- 
trats^andhasthsweid "ohoses;" and it is olear that 
all thingL with the excmtion of the eases eixeepted, 
««n vil&ia te nsH*v. (See Fothler, hy SfMif 



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THE JtTRlST, 



33 



fmt 4, Q. 2, arts. 1 and S ; Tonllier, Droit Civil Fran- 
fwa, torn. 9, tit. 3, c e, art 1, pp. 17, 18). It waa to 
get ni of toe tneoimiiieiiee aiisme from the extensive 
nd incOTTenient operation of this last ordonnance, and 
not BiteDdiDg' to ^storb the Ordonnance de HooUna, 
tSnt th« Canadian Act of 25 Greo. 3, c. 2, was passed. 
That part re^nJating the admission of evidence was in 
ttxm words: — " Dans la preuve de tons fails concemant 
les sfUresde commerce, on aurareconrs, dans toutesles 
cms de jurisdiction civile en cette province, aax for- 
BHi adates qoant anx temoignage par les lois An- 
gUM." Xdw, as to thisact,we say, first, this was not 
aeamodal aflUr; it was a mere bnilding contract; 
ml nitil the 6 Geo. 4,e. 16, bailden were not within 
Ae hankrvpt laws. [Xord (hmpbd!.—l should s^, 
ttal wherever capital is to be laid ont on any work, 
■id a li^ ran of profit or loss, it is a commercial 
ratnre.] VCkameenor of tie Dvcf^ of <VniraI?.— Each 
act of Umi^ and seUing is an act of commerce : a 
Bnaber of such acta wonld malce a trader.] Second- 
tjf 'A was not inteaaded by it to let in parol proof of 
MnowA relating to mercantile mattery bat only of 
Jmi rdatiiig to mercantile niatters; and thereby, tn 
eS«eL, u ^ rid of the ordonnance of 1667, and to leave 
the ¥T«Qdtk kw aa it was under the Ordonnance de 
WmiTtB* the only renuuning point is this — the 4th 
mt6m at the Statute of Fraads (29 Car. 2. c. 3) sa^s, 
daf wiboe an agraement is not to be performed within 
anar, h cannot be proved by parol evidence. Now, 
hin, the eontraet wms not performed until the year 
Bft; and if the contract for the works coald not be 
Urtma e J vMiin the y^r, the same objection woald 
to anj eootract relatiTe to the profits to be de- 
AnS from the works. (BoydeH v. Drummondf 11 East, 

Mmtim and TemtpU were for the respondent, but 
was vt called on bv tiieir Lord^ipa. 

Idtd CxxnxLL deliTeied the jad^ent of their Lord- 
Mfa— Tbdr Lordships are unanimously of opinion 
ftatflii jo^^ment oD«ht to be alfirmed. It is admit- 
Is^ fti^ in cases m tirfa descr^tiwi arising in tiiis 
flMntn; parol eridsnee Is admimble. The Court of 
iC^'Bwwh at Montreal thoueht that this evidence 
Bot adnd^ble ; bat wh«i the case came before the 
Csot d Appeal, that Court thought the evidence ad- 
■nsiftte; and we arc of opinion, that tiiat Court came 
tftaii^eiHidiirioa. It is admitted, ttiat, if the evi- 
dnee of Griffin is to be believed, and that it is not 
weemmej to have written evidence of the partnership, 
Ac tm ef the mteUant fiiils. Now, there is no direct 
enttafietioD to Griffin's evidence, and the case resolves 
Hsrif iato tins qaestion, whether the contract that is 
mwt be proved by writing t If so, it has not 
bceo doH. 5ow- the qneslion i^ first, how would it 
W W tbe Fieaeh law, and how by the Englishf Their 
Jmitapt are ofopimoii^tfaat it is nnneceassry to consider 
tba matter stood wuh regard to the Ordonnance de 
KMfim of IfittS, beeanse ueir Lordships are aU of 
jmwn, tWit, aeooT^ng to the Canadian Act of Par- 
mm£t the qnestkn is to he determined br the law of 
^^md. Ifow, by the Canadian Act, 25 Geo. 3, c. ^ 
aUttWK an act passed to regulate the procedure of 
ft* eovrts, H was, amongst otiier things, enacted, that, 
*iB|naf o€ aU fteta concerning commercial matten, 
MeoQiae A^il be had, in all the courts of civil jurisdic- 
tan in thk imrvinee, to the roles of evidence laid down 
^ tfe lawa of Ei^buid.** Now, ia or is not this acasa 
Ma u e iiaug a eommereial matter? The Xegislatuie 
dmatr intended, that all contracts of a commercial na- 
ta> Jhoold he capable ef hdng enforced according to 
the Ei^Bh law. The present is a contract for tiie 
■ski^ of a esnsl, ftmn wMcK, by a large capital \ma^ 
lad OKI and a risk ran, a profit might t)e derived. It is 
dmrir a eommmal undertaking within the meaniiu; 

a( Wi tfatBlB. It bas hssn attempted to be argaed. 



that the sUtnte only intended to let In parol evideiies 
as to matters of foot, such as the deliv^ of gooda, &a, 
but that it did not intend to let in parol evidenoe to 
prove an agreement. It would be very strange if Uiaca 
were such a distinction ; bat it is clear, that, by ''faita,*' 
the statute means all facts by wliicn the contract la 
constituted, or all other facts concerning commercial 
matters. That being so, we come to the question, wlio- 
ther, according to the law of England, the evidence in 
support of this declaration is sufficient. It is not dis- 
puted that it would be so^ unless the case- be within the 
exception in the 4th section of the Statute of FraudsL 
as bong a contract which was not to be performed 
within a year. The question, therefore, is, is the agrea* 
ment set out in the declaration such an agreement as 
that mentioned in the 4th section of the Statute of 
Frauds? No case has been cited which is at all in point. 
SoytUll v. Drummomd and other cases of that class liare 
no application to a case like the present. Here the 
contract that is set up is a mere vendition of a rifht. 
Why, then, is not toat to be performed ? M'Kay 
^reed that he would let Rutherford into the partner- 
ship: that agreement was performed when the agree- 
ment was entered into; that cannot be sud to be sudi 
as is not to be performed within the year. From the 
moment of the agreement beingentend into, the par* 
ties to it had matoal rights. The 4th section of tha 
Statute of Frauds does not apply. By the law of Eng- 
land, the parol evidence is admiadbfe ; and, therefore, 
their Lordships are of opinion, that the decision of tho 
Court below was light, and the l^>peal must be dl** 
missed, with costs. — Jgpeal ditm^tMy with cettt. 

COURT OF CHANCERY. 
RowuHD «. Hoaeax.— ifer. 21, 22, 2S» mtd Dee. 4. 

7%e EartcfA., h hit WilkbMueathtd to his Son, Vi»' 
eema N., and his Nein, Earls o/A^ certain ChatteU, 
eimsittina ofPlate^ Jemltt md other omammuU Art^ 
det, to be held as Heirloom and directed his Ezem- 
tors to mate an InvenUyry of such (JhaUelt, By a Co- 
dicil to the Will, the Testator declared it to be his 
Will, thatf in addition to the Articles he had made 
Heir-looms by his Will, certain other Articles of the 
same Description^ deposited in a particular LoatHty, 
shoiM be considered as Heirlooms^ and he gave m 
same to hi* Steenters m Heirlooms in his Fami^, and 
direded Utem to make an InvenUtry thereof. At the 
Death of the Testator, his Son, Viscount N., succeeded 
to the iWe of Earl if J., and also to certain Estatee 
annexed to the TitlOy and Hricthr and inalient^fy settled 
in Tail male:— Held, that the Case feU wthin the 
Principle <^ the Decisions, overruling Lord Hwd- 
wiei^s Judgment in Gower e. Grosvenor, (3 Barn. 
54; a Madd. 337), and Trafford v. Tmffiard, (3 Atk, 
347), and that, consequent^, the Gift of the Chattels 
was a €Hft executed, and that the mattels became the 
^solute Property of VUeotmt N, on the Death qfhig 
Father. 

7%e R^ht of TVtMfsM and Exeeuton to ofitajn the Di' 
reOion of the Court, without being KoMs to Com, doe$ 
not apply to an Appeal. 

This was an appeal from the dedrion of Wigram, 
V.C., (reported 12 Jar. 348). The fhUowii^ statement 
of tile fiwts of the case la taken from the re^rt joat 
referred to* : — At the date of his will and of hia death, 



* The reporter tskes tfaia opportonltr of menttonlng, thit, 
wherever the report of tiie deciiioa qppoded from has a^eaied 
in e former vehmttf Us praetke mnmreOt b to repeat, dMur 
wb^r or la part, Oe stalstteak of Oe AmIs of the eaee, aoA a 
eoorsa appeulBg to Uai aauBaaaiy for Ifaa ooBTanlanaa af tfet 
reader. 



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34 



THE JUBIST. 



Henry Etrl of Aberg^rumy, the testator 1b the canse, 
wu seised for an estate t^l male of and in Eiidge Castle 
and oAer manors in the county of Sussex and else- 
wher^ which had descended upon and become rested in 
the testc^r under the proviuons of a statute passed in 
the reign of Philip and Mary^ intituled, " An Act con- 
cerning the Restitution of the Heirs male of Sir Edward 
Nsvill, Koight." By that statute the tenant in tail 
was restrained from alienation, and the revernon was 
limited to the Crown. The testator was also, at the date 
of his will and of his death, seised in fee of certain other 
estates which be had obtained by purchase ; and he ^.-as 
also at those periods possessed of a service of plate, 
jemls, and innketL and other artides of ornament 
which formed the subject of liti{^on in the cause. At 
the same period the testator had two sons, John Viseonut 
Nevill and William Nevill, of whom the latter had two 
sons also living at thme periods. The testator, by his 
will, dated the 0th March, 1039, after reciting therein 
that he had only two children, namely, his eldest son, 
John Lord Viscoant Nevill, and his son William Nevill, 
who had a large family, and further recltinj^ that the 
ancient family entailed estates had become so improved 
that they produced in rental mach more than when he 
came to the title, and that he had also by care and 
economy been enabled to purchase and acquire estates 
of the Tune of 70^000/. ana upwards, and that, as it was 
lus intention to give all such estates to his eldest son, 
John, to descend with the title, he, the said testator, 
considered he was bound to make a good and proper 
pronsiim for his son William Nevill, the testator gave, 
oerised, and bequeathed certain freehold messuages, 
farms, and lands, tithes, and hereditaments, and all 
turnpike secnriUeSi navi^tion and canal shares, in his 
Bud will particularly mentioned, and all and singular 
other the freehold and copyhold messuage^ lands, tene- 
ments, and hereditaments wtiatsoever and wheresoever, 
which he was then, or at the time of his death should 
be, beneficially seised and possessed respectively of, or 
in any manner entitled to or interested in, either in 
possesuon, revernon, remainder, or expectancy, and 
whether at law or in sanity, or over which he lud any 
disposing power, with tnelr several appurtenances, save 
ana except certain lands and hereditaments purchased 
by hiin situate in Birling, in Kent, unto his brother 
G. H. Nevill, since deceased, and plaintiff, Daniel Row- 
land, their heirs and asngns, to the use of his (the said 
testator's) eldest son, John Lord Viscount NevUl, since 
deceased, and his assigns, for his life, without impeach- 
ment of waste; ana afler the determination of that 
estate, by forfeiture or otherwise, in the lifetime of the 
said John Lord Viscount Nevill, to the use of the sud 
George Henry Nevill and plaintifF, their heirs and as- 
sigDS, daring the life of the said John Lord Viscount 
Nevill, upon trust for the said John Lord Viscoant 
Nevill and his assigns during his life, and to support 
the remidnders thereinafter limited ; and after the de- 
cease of the said John Lord Viscount Nevill, to the use 
of such person or persons as should or might be next 
entitled upon the decease of the same son tolits (the said 
testator's; family settled estates, in such order and course 
succesuvely, and for such estate and estates, subject to, 
with, and ander such powers, provisions, declontions, 
and agi-eemente, as are expressed, limited, and contiuned 
in ana by the act of Parliament of Philip and Mary, by 
which his (the said testator's) fitmity estates were set- 
tled and entailed, and subject also to all other powers 
proTisoes, and agreements, which were eontuned and 
then in force concerning any of his said family estates, 
or which might be contained in any act of Parliament 
passed touchmg and relating to the said estates. The 
testator, after making other proviuons by his will, 
which are unnecessary to be stated, proceeded as tol- 
hmi-^* And I kere^ ghe and baqmath mOo my said 
iutt Joht Lord VUmm NMU, mdtokU KHrtt &rU of 



Abergavmnv, alt mjf gold amd tiher plate md pieltireg, 
and Ml my oooitf lace^ famify ptarl nedlaee, tUver Aover, 
and family rcbes, and all diamonds, miniaturea, and gola 
and Hlver omamentt, to be held as AetVfooau, fitMpI sue/, 
tAinfftatlshalltpecificatlybeqtteath tiisayrmll; ana 
I direct that my exeattora do mate an intmloijr of al\ 
«ucA cbatteU and effect*." The will then contained nu- 
merous other bequests and proviMons, which were im- 
material to the question in tne cause. The first codicil 
to the will was dated in April, 1841, and was alsc 
immaterial to the question in the cause. The second 
codicil, dated Jsnnat^ 6th, 1842, among other bequests, 
contained the following: — "I declare my will and mina 
to be, Aat. in addition to the artides and thitw* Ihaoi 
in my wtH ami tod&eil made Meirloomtf aU andeingulai 
tie n^niatMret and pietnre$y and eilver filagree, Indian 
artidet, omamente for tablet, and foreign lace, and al< 
other the articles contained in two green boxes tied wit} 
tape, and sealed with my seal—sueh are nun^ered 1 anc 
2, and deposited in a drawer in my library — and aleo al. 
the miniatures, seals, and all other articles contained it 
a small cabinet in my gallery, shall he considered ana 
taken to be heirlooms; and I herdy give and begueatA 
them to my executors as heirlooms in my family, and 1 
hereby authorise and direct sy executors to maie an in- 
ventory of all and singular the articles herdy bequeathed 
at^ sign the same; and I authorise them to open suci 
botes and eeitinetfir that purpose." The will and codi- 
cils also contained other Mqnests not afiecting the 
question In the cause. On the death of the testator, 
tiie titie and settled estates descended upon his eldest 
son. Earl John, who afterwardsi in April, 1845, died a 
bachelor. During the lifetime of John, the articles of 
verth and ornament, the subject of disposition in the 
will and second codicil, were, with his privity and con- 
sent, left by the executors of his father in their placet 
of deposit in Eridge Castle; but, on his death, the pro- 
perty in them was claimed by his executors, as having 
become vested in him absolutely under the will of hit 
father. On the other hand, the chattels were claimet) 
by the testator. Earl Williun, on whom the title au^ 
, family estates had descended upon the death of his eldei 
brother, John; and by his two sons, as having, undei 
the limitations of the will and second codicil, becomi 
annexed to the title as heirlooms, so as to go with it t( 
the parties who should become saccessivel^ entitle^ 
thereto, so long as the rules ogtunst "perpetnity woulc 
allow. The bill was filed after the death of Earl Johi 
by the surviving trustee and executor of his father. Ear 
Henry, against the executors of Earl John and Willtam 
the present Earl, and his two sonc^ for the purpose o 
having the question of title determined. This qaestioi 
depended on the point, whether the gift of the chattel 
was to be treated as direct, or as only executory. Tb( 
Vice-Chancellor having, on the 17th April, 184& hek 
that the gift was a gift execnted, and that the coatteL 
became the absolute property of Earl John on the dcati 
of his&ther; the defendant, Earl William, now ap 
pealed to the Lord Chancellor. 

BetheU, Lee, and Qoodeve. for Earl William. 

The Solicitor-General and Simpson, for the grandsont 
of the testator. 

Waiier, Humphry, and B. P^Umer, for the executor 
of Earl John. 

BethdL in reply. 

The following were the cases cited and commentet 
on in the course of the argument :' — Oower r. Qrosoenor 
(Bam.M; 5Madd.357); Trafford'i.Trafford.lZ M)t 
347); 79e Duke ^BridawtOer v. Egerton, (2 Ves. sen 
121); Au»tiny.Taylor,(\'M&^^\);Darlaf Y.Lang 
worihy, (3 Bio. P. C. 369); v. BumOl, (1 Bro 
C. C. 274 ; 4 Bro. P. C. 319); Faughan v. Burskm, (I 
Bro. C. C. 101); Leaerofi v. Maynard, (1 Ves. 279) 
Crowder v. aowes, (2 Ves. 449) ; The Countess of Lin 
cote T. ?»« Duke ^Newcastle, (12 Yes. 218, 239); Can 



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THE JURIST. 



25 



w.Evii^ »T9iL (14 Ves. 478); Wriaht r. Atfym, 
(G. Coop. Ill); i>oe T.Smkk, (6 H. & S. 126); n« 
Amna-emml r. f%e I>mh of Mar&orwgh, (3 Madd. 
193}; lord Deerkwnt t. The Duie of St. Aa>an$f (fi 
VM. tSS); Ghri» r. Lord Orviond, ( Jac. 106); Jer- 
WWT. m DwU tfNortkumberla»d^ (1 Jac & W. 574) ; 
mmnUr. Omntrf, (2 CL & Fm. 611); THa Earl 
^JMricfaT. JWw, (7 a. & Fin. 795); BlaciKdl 
T.M,(llbeii,]76j; Jfaclwei«(T.i3tiuHaii,(2KeeD, 
Wy. Imi Dminter r. Tk* Earl of ^tnghawt^ (3 
Bear. IflOtn.; 10 Sim. 687. n.); Brirtow v. BriHow, (fi 
Bttr. US); Boekfort r. FiUemauHee, (2 Dm. & W. 1); 
Bmtar.Le Detpemter, (11 Sim. 508); Vmdtrplani 
T.rm^ (3 Hare. 1); Sam/ord r, Samfordy (1 D« G. & 
& C7}; Co. Litt. IS. b., Butler's edit. ) 

Dtc. A, 1W8.— Loai> Cbaivckllob.— The only ^ues- 
fya I hm to eoDsider is, whether this case fidls within 
Ibc pn^i!!^ of those decimons which have oTemiled 
Imi^mwiekeij^dtnaent in Oowerv, Orotvenor taid 
Ti^md T. Tr^l^; for I aiu S9t at liberty to depart 
fan mek principle, what«T«r my opinion ntay be as to 
Acanprictf of the role adoptetf. In 1806, in ths t::^ 

Xi^XwMh r. The Dmhe tff Neweattls, Lonl Eldon 
ttM^Unatf 90 boand in the Honae of Lords; and, 
ARtbeliiit if forty years, I eannot be leaa bound in 
ftaarnt But Lord Eldon did not think himself at 
tbt 6m piritdcd, and I do not think myself pre- 
Am expnanng regret that Lord Hardwicke's 
Ums bad been deputed from, aedng thai those de- 
daw wm Bot ofanoxioiia to any principle, and enabled 
tttCont to carry into effect the ver^ obvious intention 
rftktetatsr; whereas those which have overruled 
treat jmrinona of this sort, as Lord Hardwicke 
^Raes it in Otwer r. Qrovemory as express gifts to the 
fv^ "a parpon to defeat the hitention of the teata- 
fia^ howerer mnch I may lament the evils 
■iMKfraa these later caaes, I have here malv to eon- 
•1^ fait, what ktiM rale and principle established by 
^ hte cnca; and, aectmdly, does the preaent case 
UvAffiitf In O omr t. Groamor there waa no ex- 
bI, tmt a direction that eertun chattels shonid 
(•afenloMnSiasthe testator's real estate waa settled; 

Imi Hardwicke held that this was to be taken as 
immj to the execnton, and said, that, " when a 
nn sikca aae of wwds of that kind, he does not make 
atbttatioo himself, but he leaves it to the law to do 
ta," And in IVafford t, Traford, in which 
■nvHa&cei gift, he considered it as controlled by 
yp wii latent, is these were now the mling av- 
wit)<^tWre would be no doubt of their governing 
■sjRat csm; bat the last of those decisions was in 
yyiW* ia 1783 the case of v. Bumell was heard 
f"**l4ri1hiuiow, who decided upon the point now 

* fnfra mthont any aminMnt, the Ateta having 
*>■ nimdmtood thnragaont the diaenarion : bn^ 

< n^Ktring before the Lords Commianoners, 
^ l^nghbonogh. Judge Ashurst, and Mr. Baron 

Lord Hardwickra jadgroent was ovemiled, 
^Btiia tatatea *m that case being so held, that Edward 
*mj bccaaie tenant for lift, remainder to first and 
wTiooa in tiil, remainder over for life, certain chat- 

bequeathed to be held and enjoyed by the 
ydj ewoaa who from Ume to time respectively and 
•ww^^nld be entitled to the use and possession 
«wMHf% as and in the nature of heirlooms to be 

aad to go along with the houses for ever. 

tibs teaaat forU^ bad a son bom, who died 
■"■rtlyiftcnrards; the qvaation was. whether Edward, 

* w Kpnmtative of sneh son, or the pUnUflb, as de* 
jijniBRmtinder, wen entitled to the cliattels. The 
^ Comnjasioners hdd that Edward was entitled, 
ffl***? spca Uie nonnd that the deceased son, having 
■» ttaant m of the booses, was absdutely en- 
%d ts the chattels. Each of those learned judges 
«M tbai the infant waa entitled, according to the 



terms used, and that the Court could not control them. 
This case went to the House of Lords, and is reported 
in 4 Bro. P. C. 319, and the decree was then affirmed 
in 1785, the House having, bv consulting the judgea, 
adopted a course which proved beyond all doubt their 
opinion, that the rights of the partiea would depend 
npon the legal import of the terms used in the wiU, 
and not upon the comSderation of anything which a 
court of equity mlj^ht do for the pnrpose of carrying the 
apparent general intent into effect. In Vm^flum r. 
Burslem (3 Bro. 0. C. 101) Lord Thnrlow acted upon 
the same rule. There was no direct sift, but the direc* 
tion was, that chattels should go as heirlooms with Uie 
real estate, and be lield and enjoyed by the person or 
persons who should for the time being be entitled to the 
real eatateek so far as the rules of law and equity will 
permit, and he directed an inventory of tlie plate that 
should go with the estate. Such were the decisions 
which Lord Eldon, in 1806, reviewed in the case of 
Ladjf Lincoln v. The Duie of Newcattle; and in that case 
he came to the conclosion, that, although he prefierred 
the doctrine of Lord Hardwicke, the mie an l&!d dowi^ 
in subsequent cases was to be Uie rule for the future; 
and, concurring as I do in this oplnlm, it la ubIcm 
to oonsider what my judgment in this case might have 
been had these later decisions not taken plaoe. The 
question, indeed, is now further eoncluded by other 
cases which have foUowed the same rule, as Carr T. 
Lord ErroU (14 Ves. 478) and Deorhurst v. TJi« Duk* 
of St. A&anSy(B Madd. 232^. In the latter case Sir 
John Leach amnned the rule laid down, saying that 
it was a direct gift, and there waa nothing executory 
in it, although he did not very strictly act upon tha^ 
when he declared that all persona tenants for lift^ 
being in ease on the death of the testator, might have 
been limited to the use and enjoyment only. This 
deciwon was, however, rerersed in uie House of Lords, 
(2 CI. & Fin. 611), upon gronnda vhieh do not touch 
the present case. Tne cases of Lord DMrdMtr r. 
TkeEartofE^ffkamy before Sir William Grant, (In 
3rd Brown, in 1813), and MaekwortK v. Hinxman, ba- 
fore Lord Langdale, in 1838, (in 2 Keen), do not apply 
to the present question, but both tend to exemplif;^ the 
soundness of the principle adopted by Lord Hardwicke. 
It remains to be considered whether the case does or 
does not fidl within the principle of those decirions, by 
which, as I have said, I find myself bound. By those 
decisions a gift of chattels, to be used as heirioom^ and 
to be enjoyed by the person entitled to the real estate, 
is to be treated as a direct gift, and, therefore, rests in 
the first person entitled to an estate of inheritance in 
the land, and u not to be protected further by the in- 
terpoaitton of a court of equity. By the will, the gift 
is, " to my son John Lord Visconnt NeviU^d his heua^ 
^U'ls of Abeigavennia." John became Earl of Aber> 
gavenny. The words are weU adapted to create an 
estate of inheritance — not less so from the qoalificatioD 
required of their being " Earls of Abergavenny." It ii 
true, that the testator has added to the articles be- 
queathed, or to IM held as heirlooms, and directed that 
his executors should make an Inventoipr of them— * 
leaving no doubt as to what the testator intended, and 
affording a sure guide to the Court how to carry his 

Eurpose into effect, if it had the power to Interfere, 
lut those circumstances (as the cases I have observed 
upon dedde) do not prevent the gift bwng direct^ 
and, tlierefdre, do not inTe the Court the power to snp* 
port that intenticm. The seeimd codicil ooes not vaty 
the ease as It appears upon the wUl; it only gives eer- 
tain other chattels as ndrloonu, and directs an In- 
ventory to be made by the executors, and it givea those 
articles in addition to the articles and Uiings by his will 
made heirlooms. The case upon the will and codicil, 
I think, is the same. John Lord NeviU was the testa- 
tor's heir, and had an estate of inheritance nnder tha 



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words of the wilL without reference to the Utle or the 
leal estates, which are not refmed to, the only heirship 
inferred to being that of the earldom of Abergavenny. 
Acting npon the rule established in the cases before re- 
ferred to, that this bequest is to be treated as direct, 
and not as executory, I am bound to declare that John, 
the eldest son, became absolutely entitled to both sets 
of these chattels; and I therefore affirm the decree of 
flie Court below, with costs. 

[Some discussion then took place as to the costs of the 
appeal coming out of the fund, which, in reference to 
the position of the parties appealing, the Lord Chan- 
cellor allowed. In the course of this discussion, and 
aUudin^ to the right that trustees and executors have 
to obtain the direction of the Court without incurring 
Costs, his Lordship observed : "I have never con»dered 
this as api>lying to the appeal. It does apply to taking 
tiie direction of the Court in the first instance, but 
when they have got that, Uien their own indemnity is 
obtained. If their view of their own interest makes 
them think it expedient to have it hetu^ again, ^en it 
can be heard at toeir own avwh-b "i 

- -IT-—* J 

ROLLS COURT. 
Tdxe v. Moxhay. — Dtc. fi and 6. 
InjtmctiOR to restrain Breach of Covenant. 
A.pure/iased a Piece of Pleasure-ground, in the Centre 
a Squarey in London, from and covenanted not 
to use it otherwise than as Pleasure-ground. The 
Pleasure-ground subsequently became vested, hy pur- 
chase, in C, who made Prorations for building 
upon it. The Court, at the instance of B., resfrainod 
C.from using the Ground otherwise than as a Pleasure- 
griund, aMougk U was alleged that the Cimmmt did 
fwf at Low run with the Land. 
The bill in this case stated, that the plaintiff, in 

E* ' , 180& was seiaed in fee ^ a piece of ground or 
m, ana other hereditamenta, in Leicester-square, in 
onnty of Middlesex, and of nnmerous houses si- 
tuate in the same square ; and that be contracted with 
Charles Elms to sell and convey to him the said piece 
of ground or garden, subject to a stipulation or condi- 
tion, that £lmB, his heirs and assigns, should for ever 
thereafter keep and maintain the same in the manner 
eccpressed in tne covenant contained in the indenture 
Uiereinafter set forth. That, by indenture of release, 
dated 15th July, 1806, kbA made between the plaintiff 
of the one part, and Charles Elms of the other part, 
it was witnessed, that, in consideration of the sum of 
210/., paid to the plaintiff by Elms, the plainUff grant- 
ed, bargained, aold, aliened, released, and eonfinnea unto 
tke sdd Charles Ehns, his lieirB and asrigns, all that 
piece or parcel of ground or garden, commonly called or 
mown by the nanne of Lisioeater-square Garden or 
Pleasore-ground, situate, lyinjj, and being in Leicester- 
square aforesaid, together with the equestrian statue 
then standing in the centre thereof, and the iron rail- 
ing and stone- irork ronnd the said garden, and all ways, 
&o., and appurtenants to the same premises belonging; 
to hold the same unto the said Charles Elms, his neira 
and assigns, for ever. And in the said indenture there 
was contained the following covenant by the said 
Charles Elms:— <* And the said Charies Elms, for him- 
self, his burs, executors, admlnistntors, and assigns, 
dotn covenant, promise, and agree, to and with the said 
C. A. Talk, his h^n, executors, and administiaiota, in 
manner following; that la to say, that he, the said 
, Charles Elms, his heirs and assigns, shall and will, from 
time to Ume, and at all tines for ever hereafter, at his 
and th^r own proper coeta aid charges, keep and m^n- 
twn tike aud piece or parcel of ground, and square 
gardtti, and the iron railing round the same, in its pre- 
Bsat fimn, Kid in snffidcBt and pvapcr rtfmr, as a 



square garden and pleasure-ground, in an open ateteu 
uncovei«d with any ouUdinjn^ in neat and omain«iital 
order, and diall not nor wul take down, or permit or 
suffer to be taken down or defaced, at any time or limos 
hereafter, the equestrian statue now atwding or beim 
in the centre of the said square garden, but shall am 
will continue and keep the same in its present alt ac- 
tion, as it now is; ana also, that it shall and may bo 
lawful to and for the inhabitants of Leicester-square 
aforesaid, tenants of the said C. A. Tulk and of J. A. 
Tulk his father, their heirs and assigns, as well as Um 
said C. A. Tulk and J. A. Tulk, their heirs and assigtu^ 
on payment of a reasonable rent for the same, to have 
keys^ (at ttieir own expense), and the privilc^ of ad- 
mission therewith, annually, at any time or timea, into 
the said square garden and pleasure-ground." The bill 
then stated that the piece of garden ground had con- 
tinued in an open state, and uncoveredwith auv ^~a^£[. 
ings, and in tlie condition of a pleas..- ^^j, 
trees planted m it. That oefendant Moxhay bad 
become the ow-;^ ^^^^ deduced fewt £W 

^ tiaa lately ccssicnoea ontting down the trees an^ 
erecting a hoarding or hoarding aCTCSS it. with s tIcw 
to erectinff shops and other buil&igs apon it. Hie biQ 
changed the defendant with notice of the covenant when 
he purchased the piece of ground ; and it prayed that he 
might be restrained from cutting down the trees and 
shrubs, and from pulling down or removing the iron 
railing round the pieoe of garden ground, and from erect- 
ing, setting up, or continuing on it any house, dtop, or 
other buildings, or any soafrolding, boarding, or board- 
ing, for the purpose of building, and from t^it^ down, 
or permitting to be taken down orde&ced,theeqnesfcrian 
statue standingin the centre of liie said square &o. The 
Master of the Rolls granted an ex parte injunction, ve- 
stvaining the defendant,bis servants or agents,from doing 
any act whereby the piece of ground and square garden, 
and the iron railing round the same, should be altered, 
or in any way injured, as a square garden and plenani^ 
ground, uncovered witii buildings, in a neat and oma- 
mentd order, and firom cutting down or injuring any 
trees or shmbs then growing on the said piece of ground 
and ornamental thereto. The defendant put in bis 
answer, and the defence set up by it was, that the 
character of the square had of late years become greatly 
changed, by reason of certain thorongbfiutts for car- 
riages and horses having iwen opened into it, by which 
the use of the garden as a pleasure-ground was much 
interfered with. That the piece of ground had, for 
many years before the defenoant became the owner of 
it, been suffered to lie in a most neglected and slovenly 
condition, and that the plaintiff and his tenants had not 
taken any steps to enforce the covenant to keep it la 
good order, but had acqoiesoed In itsmnwning in soch 
condition. That they had never applied for keys of tiie 
guden, or used it as a pleasure-ground, and no fond 
arose from rent for keys towards keeping up the gardsn. 
The defendant also contended, that the puuntin ooaM 
not sue at law on the covenant against an assignee of 
Elms, inasmuch as the covenant aid not run with the 
land; and that equity would not interfere to enforce the 

Cirformance of a covenant which did not run with the 
nd ; and even if it would interfere in certun cases, yet 
the plaintiff had, by his laches and neglect, disentiUed 
himself firom seeking its assistance. The defendant ad- 
mitted notice of the covenant when he bou^t the pro* 
perty, but he claimed to be entitled to exercise his legal 
rights over it, though he did not statepredsely in what 
way he intended to exerose snch riahts— wnedier if 
erecting buildings, or otherwise. Tbe defendant now 
moved to dissolve the injunction. 

Roundell Palmer, for the motion, contended, fir*^. 
that the alteration in the circumstances of the property, 
wi^ mard to the new streets whidi hsd beio cposd, 
nadeitiacqnitaUaftrthaCeorttolnterfm. OntU» 



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THE JURIST. 



37 




^ At BritiBk JAumm, (2 My. & K. M2); 
r. Vw iiti yi, (6 Sim. Formarly, the 

Iwd been retuvd ead <iuet, ost the new tho* 
■nekad htfxodiioetf • giw* ^mX of tfaffie,a»d 
l—ljijiiil th» of the ple«wu»«n>iind. Se- 

fbe pkiatiff had ao^deacMd for ymn in the 
IB the MMBted itate in whioh it WM 
he DM his temnte had ^ipUed for 
Iec^s; a»d it mast be eonadeicd tliat they had waiTed 
iMirqfht to here it up aa a pleeeore-grouiid, and 
wmmfnAtdnd bjr their laches from nowciHning to the 
OamL Thiidly, the iqjnnetioBy in its twrns, was not 
wnai t te d , either by the form of the covenant or the 
fojer of the bilL There was no ground for restrain- 
aag the dffandaat from catting down treee. He was 
not boud "hj the oovenant to keep the ground planted. 
IW TOrda**neat mad ornamental order*' were not ap- 
pifliUbto Ac axcnmrntMacm. Fwirtfaly, the Court had 
' an inwMlMa on nidi a eoTenaot aa 
CoKt omfy iotariend hi aid of legal right, 
ylainftiff' Im, a* law, no rixht aguut the 
■m the eoTHwnt. (1 Smith's Lead. Cas. 
TW eowmnnt dad not, at law, mn with the 
CnrfT. M2ar.£ My. &K.fil7; Whatman 
,«So.l96; jir«m r. iSk^MlefM, U Sim. 877 ; 
mwirfrir, 13^.328; JXamim v.Hvg- 
1. 13 ; ^UMfiw T. 10 Sim. 27 : <S^0 
xOmfitB, 4, My. & C. 469). 

Aniar and ShMmre, c«»mtra^Thare was no ground 
fm dodbtiag the aothority of the Court to interfere in 
a .^aa ia» the pnaant, exoM>t the dictum of Lord 
in ^q ya f J3ai£g/. The weigU of au- 
was «fi thie oUwr Mde ; and thare was the deci- 
tthafMaant ChanoalhHT «i the point in iAuw r. 
kto tha alteattion in the character of the 
it WIS aat canead by the {kfuDtiff^ but by 
■■ ^et of the deSaadaat and hia predecesseis to 
kmaitiB Draper vcpair. The oblintiw was on them 
laaaak n« wtuider that the inhautants of the aquan 
dU Hi tdu keya whtlsi the ground was so neglected. 
Haa leaght the pro|terty, and entered into the oove- 
Mari^ea the spaeiuatMB thai he would get enough to 
laaif Urn for his porchase by the rent for the keya. 
M» Hfhiidaiit bad notice of the oontzact when be par^ 
4iHd, ad he cannot eaea^ from its obligations. 

Viad U^BMi.B, M. R., said, that the qnestions dis- 
VBid aeRiBpMtant. The fintqtwation was, whether 
watMiatiaa with the land; and the seeond ques- 
Sm aa^ ^eiher a corenant which £d not run with 
^indciKUd be enlinMdinaconrt of equity; that 




^attav the vkdaUon «f It eoold be prcTented. It 
-vaaaA tl i|ii Oat time waa aay decinon in Ke^l 
^Aa^; there waa a dictum, no doubt, of great 
imf mtmu^ There waa also an indication of the 
^niaa of Sr J. Leadi, which was not in conformity 
with thai dietam. The opinion of Sir L. ShadweU 
vaa also not in eonfonnity with that dictum. The 
eaaa sf Mmm t. Sti^mg was in many respects similar 
la tluL ne Tiee-Chanoellor of England granted an 
t in the words of the ooTeuant. It waa alleged 
: had ben a loeach of the injunction, and aa 
a mt» Mde lor the oonmitmoit of the de- 
.Ni^id was wderad. The eaie was then brought 
ne Lord ChaiiceU«r b^ appeal frmn thia ommt, 
md aha J^n the eider gianUng the injunction. Ve 
mm nCooMd by the report Mr. Simons, that the 
mmfmmk tUa luteal diaehaiged the wrder to commit, 
aat the injunction ; bat the ChanceUw directed the 
«4« yiatiag the knanction to be varied by omitUng 
A* aards "and whiA ahaB be ornamental rather than 



• ta the samHndwg |»op«ty," aa being too In- 
It wasalao Btatad, that the motitw was «i:dered 
Wiaiili m, wilhBhwW tathaatafatiff to briag an 
■tfak Mti by ttarwaad "air*' in the may^n. 



appeared to consider that thh waa an ewor or a slip. He 
would not giT« an ofMnion on that point. If the Lord 
Ctiancellor had thought that the Court ought not to in- 
terfere, unless there waa a l^al tight, he would not have 
left the ii^uncticm standing, giving Uie pluotiff leave to 
brioffanaotioD. Hemnitoonsiderthisasaoaaeinwhioh 
the Lord Chuioellor did interfiare by injanction, <»ly 
varying that part which aeemed to him to be too Tagne. 
And he thought he ought not to ad; contrary to that 
opinion. The injunction moat be maintained, untosa 
the other defences of the defmdant prevailed. It waa 
said, theJt there was such a change in the oircnmstanoea 
of the property, that the corenant ooght not to be en- 
foned. Thti of The Dmk* <^ Bedford y. TheTnu- 
Uet <ifik» Britith Mutmm was cited on Uiis point. Bat 
there the party seeking the benefit of the injunction 
was estopped By his own acts. In thia oaae, the open- 
ing of new streets could not affect the queation, thoa^ 
it might cauae a di&rmt description of peraona to in- 
habit the square. Aa to the aliped aeqnieaeeaoe on 
the part of the pl^ntiff in the neglected conditi(m of 
the garden, the Court ooold not act upon that groiiad. 
It was then said, the form of the injunction waa err»- 
neons. He thought it did require some variation. The 
injunction aa to the cutting down trees and sluttfaa 
most be discharged. He did not think he could coai4>dl 
the defendant to Iceep tite garden in neat and ornamental 
order; but he might be reatruned from doing anything 
inconsistent with tbe use of it as a pleasure-ground. 

By the injunction, as varied, the defendant was re- 
strauied from converting or uaiag the piece of ground 
and square garden, and Uw iron railing round the same, 
te CO' for any other puifwaea or purpose than as a square 
garden and pleaaur8.ground in an open state, uncovered 
with biuldings, until the hearing of the eanae or farthar 
order. 



ViCE-CHANCELLOB OF £MGLAm>'S COURT. 
ComrtBsa of Rosk.th's TaTmrw— JViw. 17 tmd 23. 

Aeeumulatim. 
Where a Settlor Deed directs an Aeamulation during 
tbe lAvet of two Perioiu, CA« Direetim w vatid far «o 
lon^ as the Settlor lives. 

By an indenture, made the 10th May, 1817| between 
Charlotte, Dowdier Countesa Rosslyn, of the one part, 
and Henry Wrotttdw, Esq., and the Bar. Chailaa 
Wrottesley, of tlw otner put, reciting, that the a^ 
Lady Rosalyn was dedrona, aaa token m her ftiendship 
and rward, of making some pcoTiaion flew Tryphosa Jana 
CampbeU, the wifeof James Campbell, if she should suiw 
vive tier husband, and for Chailotte Campbell, her infiwt 
daughter, and that, for that purpose, the said Lady Rosa- 
lyn bad transierred into the names of the sud Henry 
Wrottesley and Chsriee Wrotteel^ tbe sum of 692/. 
3/. perCent. Consolidated Bank Annuities; the said Lady 
Rowlyn directed that the said Henry Wrottesley and 
Charles Wrottesley, their executors, administrators, and 
assigns, should stand possessed of the said sum of 692/. 1*. 
Bank Annnitiea, so transferred into their names, upon 
trust, during the joint Uvea of the said James Camp- 
bell and Tryphoaa Jane Campbdl, to receive the dii^- 
denda on the aud Bank Annnitiea as the same shonld 
accrue doe, and Uierevpon immediately invest the aama 
in the purchase of like Bank Annnitiea, or oi other 
stocks or funds, in their names, or in the namea or 
name of the swvlvor, his executors, administrators, or 
assigns; and, immediately after the decease of the said 
James Craipbdl, if his said wife. Try [dMsa Jane Camp- 
beU, should be then living, upon truat to pay to 
Tryphosa Jane CampbeU and her asaigna, during her 
lif^ the interest and dividends which should from tioaa 
te time aocrae dae, as-weU on the said Bank Annnitiea 
so tnnifund aa oa the aecamolation which shoidd 



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be nutde thereon daring the joint ILrea of the mdd 
James Campbell androur last-named petitioner; and, 
after the decease of Tiyphosa Jane Campbell, whether 
the same shoold happen in the lifetime of her said 
hnslMiid, or after his aeeease, to stand poasesnd of the 
capital cif the and Bank AnnuIUes so transferred, and 
of the accamnlatlons thereon, npon trust for the said 
Charlotte Campbell, the daughter of the said James 
Campbell, in manner therrin menUoned. The som of 
stock was accordingly invested, and the dividends re- 
ceiTed by the trustees, and invested, until the month of 
July, 1847. Lady Rwslyn died in 1826, James Camp- 
bell died in October, 1847, and Charlotte Campbell 
was dead. The trustees had paid the trust-funds into 
court, under the Trustee Act. Tryphosa Jane Camp- 
bell and the representative of Charlotte Campbell now 
applied to have the whole of the funds transferred to 
tbem ; and a question arose, whether the direction to 
accumulate was not void altwether, or whether the 
personal r^resoitatives of Lady Bosslyn were not en- 
titled to 80 much of the accumulation as had arisen 
unce the death of I^dy Rowlyn, as accnroulated con- 
trary to the statnte. 

Burdony for the petitioners, contended, that only the 
excess was bad, not that the restriction was valid 
alt^ether, but only to a certain extent. 

{^ftff, for the personal representatives of Lady Ross- 
lyn. — Is it competent for her to direct an accomula- 
uon durioff Lady Campbell's life so long as the settlor 
lived! This case is on a deed : it could not arise on a 
irill. Unleas yon read "or** In the statute conjanetively, 
■he was entitled to direct an aocnmulation lor her own 
lifc or fbr the minontj of her son. She cannot direct 
Boch an aocnmulation with respect to the life of a 
stranger, but only to her own life. [ FtM-CXanoe/for.— > 
I doubt if that is so : the life of the settlor is the same 
as the life of a stranger.] Twenty-one yean from the 
death of the settlor is the period mentioned in the act: 
the date of the deed is not mentioned, (Lonffdm v. 
Simson, 12 Ves. 295; see 1 Jarm. on Wills, 264). 
I Fiee-C^oiiw/for.— SimpUciter, the thin^ Is void : then 
the question is, whether the act afibrds, in the ease of a 
deed, any such limitation as is adopted in the case of a 
will ?3 In a will yon adopt the seeond period— a term 
of twenty-one years. 

Bwdan, In reply. 

Vicb-Chamckllob.— You say, that, in the ease of a 
will, the testator might have directed an accumulation 
for twenty-one years from his own death : she has di- 
lected an accumulation to take place after her death ; 
and the act mya that may continue for twenty-one 
years. Here I have to conuder only what la the rule ; 
and the simplest rule Is, that, if the deed has directed 
something to be done which is contrary to law, the 
direction is void, and, therefore, the accumulation will 
go to the executors. I will, however, look at the cases 
again before deciding. 

Abr.20. — The VtCB-CHAXCKLLOR said, that the ques- 
tion now came to he argued on a deed for the first 
time. There was nothing in the language of the sta- 
tute which absolDtely destroyed what the settlor had 
ahewn a previous inten1i<Hitoroake, though, in form, it 
might be an exeessof what Uie law allowed. The lan- 
goi^ of the statnte wa^ longer term thui the life or 
uT«s of any such grantor or grantors, settlor or settlors.*' 
In this particolar case of Lady Rosslyn, the monies and 
stock were transferred into the names of two trustees, 
and she directed that they should stand possessed of 
them in order to accamobUe the dividends during the 
lives of two penons jointly. She died in May, 1826, 
and the predeceasor of the two lives died in 1847; the 
question, therefore, was, whether that direction to ac- 
cumulate, which, in tenni^ was durinr the joint lives 
of tiiese two, waa irtiolly inrid, me only for tlw taatm 
After her own death, m dwn twaity-<aM yean. The 



construction first adopted by Sir W.Grant, and 
proved of by Lord Eldon in OriJIth v. Fe«, (O Vm, 
136), was, that it was only void fbr the excess. Upcoi 
reading the words of tite statnte and of Lord Eldon, it 
did appear to hts Honor that it should be taken to be 

f:ood for so much of the Joint Uves as expired in the 
tfe of Lady Rosslyn. The order would be, that the 
fund should be divided between the personal representa- 
Uves of Lady Rosslyn and the cegtula que truatent 
named in the deed; so much as consisted of accumula- 
tions made after the death of Lady Roaslyn to the death 
of the second life shoold belong to her personal repre- 
sentatives, the reudue to the cestnis que tnistent named 
in the deed, 

CuNtKoaAif e. Antrobtts. — Dee. 20. 
Bedtt<aio» into Possession, 
A JHhtor and her Husband, on Marriage^ covenanted ta 
assign to Tfustees Two Reversions^ to which the §Vife 
was entitled. One ReversUm came into Possession, and 
toasj aeeordinfffy, transferred: the other remained out- 
standing. Afler the Veath of her Husband, the Wife 
presatted a Petition to have the Sum transferred jwid 
to her. and to have the Settlement caueelied: — Mcldy 
that the Reversion was not bomd by the SeUUment, but 
that the Fund which had been transferred was bound. 
Lady Ann Barnard, by certain codicils to her wilJ, 
gave to her executors the sum of 2000/., npon trust to 
invest the same, and pay the interest totneplainU^ 
then Ann Hervey, for her own use, until she should 
happen to marry; and, after her mami^ if pl^ntilPa 
fether, Andrew Hervey, should be living, to pay the 
intenst to the s^d Andrew Hervey for his life ; and 
after his decease, upon trust to transfer the said sum of 
20001. to the plaintiff, her execntors, administratonk 
and assigns, to and for her own use and benefit. Ana 
the testatrix also gave the half-part of 4000/., on certain 
contingencies, which afterwards happened, to the pluu- 
tifiF, Ann Cuningham, and another person, in equal 
moieties. And ihe gave her executors the further sum 
of 2000/., on trust to invest the same, and pay the di- 
vidends to the pIuntifiTs separate use during her lifer 
and after her death, on trust for ail and every the child 
and children of plaintiff by any husband or husbands 
she ml^t h^pen to marry, wlw, being a son or son^ 
should live to att^ the «ge of twenty-one yeats, or, 
being a daughter or daugnters, should live to attain 
that age, equaUy to be divided between them, with 
a gift over, in case of no child, to such persons aa 
plmntiff should appoint ; uid, in defeult of appointmentv 
to plaintiff and another person. The testatrix died 
in 1825. Her executors invested the said sums of 
2000/. and 4000/.; the contingency on which lOOOL, 
being one-fourth of 4000/., vested in the plaintiff, hap- 
pened during the minority of the plaintiff. The plaintiff 
was bom in September, 1816, and was married in 1832 
to William Cuningham, who died in October, 1837> 
By articles, made previous to the marriage, It was de- 
clared and agreed, that as soon aa she, the said Ana 
Cuningham, should attain the age of twenty- one yean^ 
and so, from time to time, as she should ha entitled by 
law to act therein, she, the said Ann Cuningham, would 
do and nceeute, and the said William Cuningham did 
tliereby covenant that he would do and execute, and 
join with the said Ann Cuningham In doing and exe- 
cuting, all such deeds, ttc, as should be reqninte and 
necessary for transfiming and assigning the reversionary 
interest of the said Ann Cuninglum, expectant on tho 
decease of her father, of and in the said sum of 2000/^ 
and also the said sum of 1000/., and the stocks, funds, 
and securities whereon the same respectively were In- 
vested, or to which she shoold or might thereafter be- 
come or be entitied, or which die ahomd acquire by de- 
scent, gift, bequest, or otherwiae howsoever, or which 



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THE JURIST. 



jImU or migfat be gtreo, derised, or bequeathed to her, 
troetoes, ncNUk eertun tnuta, for the benefit of her 
Mted, lieiMl^ and hcrefaUdren. There were three 
^Umi of the maniagc, one oi whom was alive. The 
•toefci. in which th« 1000/. wen inverted, had been 
tUDifcmd into tlw names of the trustees of the settle- 
Mt. Ota th« 2th July, 1847, thej>lainUfr filed her biU, 
' fc ^ ti Mg that the settfement was inoperative, as having 
'VttAe dorine her minority, and pmying that it 
an^ be delirered ap to be canoeUed, and that the tms- 
tesB%httnnsfer to her the stocks in which the 1000/. 
nurmted. It appeared, that in July, 1830, the plain- 
tiffhsd encated a release to the executors of Lady Ann 
fiuasnl; in which, after reciting the above-mentioned 
bsfaest^ ajid reciting the articles of settlement, and re- 
^^tltttall the accounts relating to the fortune and le- 
tWks given to and provided for the plaintiff by the said 
vUnd eDdicila of the aaid Lady Ann Bamaid had been 
■■Ae and tha balance paid over to the plaintiff, it 
was wHaosed, that the plaintiff rdeased the exeeutors 
aad thee^ate of the aaid lady Ann Barnard from all 
■ctiees and aceoonts in respect thereof ; but it was pro- 
Tidei,that this release was not to relesse the executors 
the fajment of the said l^;acies of 2000/., or from 
^ fajMJil «f any further or revetuonary property 
td wkdi fluBiiff might become entitled bv the hap- 
pggl^ af lahifBient arents under the said will and 

/ J'trier aaA BOtrUM, for the plaintiff.— The 2000/. 
£i mat hn into pooseaoion during covertare, and she is 
sew Atitled to it. The only question is as to the 1000/. 
UdM MM appear that either the husband or wife con- 
wmAti to have the transfer made ; and the question is, 
vUher the act of the trustees is a reduction into pos- 
nm. (Puriem Jmetrnt, 1 Rasa.!; SlUttm v. 
Ah, 13 Sim. 309; LemnemrT.SBrattom,USha. 118; 
«eSBright.H.&W.159}. The only thing that can 
Kimt* a cfaoae in action into the possession of the hus- 
Wiissnie act of his; and he does not appear to have 
tet BTthi^. {J^4e9-Ck«awelhr,-~But there is his 
msu.] Then is an express stipulation, that until 
^ ifisiii i twenty-one nothing is to be done. 

Xr«j|Wi^ for the child of the marri^. — As to the 
1000L dtere can be no doubt. Then, as to the 2000/. 
p«mto the plnntiff after her father's death, and the 
iAb wa of 2000/., all was done that could be done; 
^nsiBMaBible to have them asngned to the trustees. 
Bada, tins release, made after the death of the hus- 
loLncttes the settlement, and in fact operates as a 
rsiifiisisliun. 

AtftiO, {or the trustees of the settlement.— The re- 
httt notes tiie settlement as valid and subsisting, and 
■teisacsBfiniiation of it; besides^ it Is nndoubtedly 
red IS to tbe 10002;/ then how can it be void as to the 
y^mmi? There is a distinct piovinon that the re- 
Ms ii nst to extend to revcTHais. 

J. PmitTt in reply.— The nIesM can have no effect 
^ pn away what was the plaintiff's own property; 
no, bdme Me executed it, we contend that the rever- 
■M was her own absolute property. The Court will, 
jsmhaeasf, not besstute to give the release a mean- 
■f it cntamlj was not intended to have, and to make 
ft epoBtc aa an airignniMit of 2000f. 

fisBopon Teserved his judgment; and, on December 
H, stsuiul, that, as to the sum transferred by the 
tnMaei^ there bad been a redaction hito poesesnon : 
md as to the rcmunder of the fond, matters rem^nea 
IB ths lady fimnd them. 

Dkbrt, limf file reeernoMaiy tnftreiff an ntit iotmd 

tlitartieUa,lmiamttkeJimdinpetaeuioii,«md»kiek 



VICE-CHANCELLOR KNIOHT BRUCE'S COURT. 
GuooB e. STAPLnB.~^iV(». 16, 17, and 29. 
Fraud— MarifalRiffht—Semna atidt Deed—Oottt, 
An ipnorant Woman, possetHd of Moofjr, lent Part to a 
Man having her Confidtnce, and afterwardM executed a 
Deed, prepared b)/ tAe Borrower » SoticitoTf bjf which 
the Borrower cotenattted to pegr Intertet to her /or her 
JAfe^ and to pay Part of the Capilat to 7W of hit 
Daughtert^ and the Remainder to Two of her Relatione. 
The Woman toom aftenoarda married^ and the and 
her Htuhand filed a Bill againH the Borrower to set 
aside the Deed, on the Allegation that she executed it 
believing it to be a Mortgage on the Borrower's Estate, 
and on the Ground that the Deed was a I^aud on the 
marilal Bight o/ fAe Husband. Cowrt, on th% 

Oroimdthat the TwoCases made lar the Bia were mot sus- 
tained, gave th* PlakOiffs 2mm to try an Issue wkeliar 
the Deed was oitofatfi fy fVaud; and, seeomdfy, tnl»* 
ther, when she executed the Deed, she was eonlractedto 
be married; and, thirdly, whether the Plaintiff the Hus- 
band when he married, knew of the Settlement. And as 
the Woman had not the Protection of the Borrower or his 
Solicitor, to which the was entitled, not having the Ad- 
vice of her own Solicitor, the Bill was dismissed^ isAA* 
out Costs, if the Plaintiffs did not try the Issue. 
The object of this suit, which was instituted by Tho- 
mas Grigffs and his wife, was to obtain payment from 
the defendant, Charles Staplee, of a sum of 500/., being 
part or the whole of certain monies placed by Mrs. 
Griegs, before her marriage, in the hands of the de- 
fendant, Charles Staplee, and to set ande a deed exe- 
cuted by her, also bobre her marriage being In form 
and languageasettlementiuapartieubu'mannerof the 
fiOO/. The other defendants were Susan and Sarah 
Staplee, and Lucy and Henry Tansley, the persons in 
whose ftvour the trusts of the deed were declared. The 
facts of the cose were, that Charles Ashby, of Peterbo- 
rough, had a maid-servant, Mary Masgott, now Griggs.. 
Mary Maggott married and became Mrs. Muskett, and 
on tnat event qnitted her place, but not for a long 
time. The husband soon died. She then returned to 
service, and continued with Mr. Ashby in the same ca- 
pacity down to the period of his death, which hap- 
pened in the month of December, 1845, when it ap- 
pears that he had made her his executrix, and also his 
sole residuary legatee. The gift of the mdue would 
have been but of sUght valu^ but that, shortly bdRm 
the testator's death, he had entered Into a contract for 
the sale of his resil estate, or a portion of it. It was 
suggested, by Mr. Gaches, attorney of Peterborough, 
whom she then employed, that there had been a con- 
version for the benefit of the personal estate. Nmtia- 
tions took plaoe between him on her behalf, and Messrs. 
Bonner, attomies^ and the sons of Mr. Ashby, the de- 
visees, which ended in a treaty for a compromise. Mr. 
Ashby had one daughter, who had married Mr. Stt^Iee, 
a fanne^ living two miles from Peterborough, who 
borrowed of Mrs. Muskett 200/., for which he gave hera 
piece of unstamped paper, in his handwriting, in this 
form ; — " On demand 1 ^mlae to pay Mrs. Hnskett 
200/., witii lawfiil interest. Charles Staplee." This 
p<4>er was written and ^iven in Febmaiy, 1846, al- 
though it did not mention any year; and Staplee, on 
the same occasion, received 200f. mm her. Mr. Gaches 
and Messrs. Bonner succeeded in compromising the emu- 
vernon quertion, and the devisees paid 600jC to Bfrs. 
Muskett, in fall of her claim in respect of the testator's 
real estate. The 20th April, 1846, at Spalding, where 
Mrs. Maskett, Mr. Caches as her attorney, and Mr. 
Staplee as her friend, were present, the buriness was 
completed, and Mrs. Muskett then received a sum ex- 
oeedmg 600/., the difference between which and 600'. 
was retained from her in ceqpeet of a demand on the 
personaleetateof thetcstatw. Soonafterthii^ the follow- 



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80 



THE JURIST. 



ing deed, the instniment complained of, was executed : 
— ^* This indentare, made the 16th day of May, 1846, 
between Maiy Mn^ett, of Peterborough, in the county 
of Northampton, widow, the Bole executrix, and a le- 
gatee named in and appointed by the last will and tes- 
tament of Charles Asnby, late of Peterborough afore- 
Bidd, gentieman, deceased, of the one part; and Charles 
GUleott Staplee, of Peterborough, feriner, who married 
Sarah, the danfi:hter the Bud Charles Ashby, de- 
ceased, of the other part. Whereas the said Mary Mub- 
kett hath heretofore placed in tho' hands of the said 
Charles Gillaon Staplee the anm of 5001., for 200/., part 
of which, a note ot hand has been given, by way of 
memorandum, to the said Mary Muskett by the said 
Charles Gillson Staplee, the receipt and payment of 
iviiieh said sum 5001. he, the said Charles Gillson 
Staplee, doth hereby admit and acknowledge to be by 
him, his executors, administrators, and assigns, paid 
and applied to and for the several ends, intent^ and 
pnipoaes hereinafter mentioned and declared of and 
oonoeming the sune: now this indenture witnesseth, 
and it is hereby declared and agreed and between 
the parties to tnese presents, that the said sum of 000/. 
flo pueed in the hands of the said Charles Gillson Staplee 
was BO placed in his hands, and that the said Charles 
GiUson St^lee, his executors, administrators, and as- 
signs, shall stand possessed of and interested in the 
same, upon the trusts and for the intents and purposes 
hereinafter declared and expressed — that is to say, that 
he, the said Charles Gillson Staplee, his executors, ad- 
Bdnistrators, or assigns, do ana shall pay and apply 
the interest of the said sum of 600/., at and after the 
xsta of 4/. per cent, per annum, to the said Mai-y Mus- 
ket^ for and during the term of \uae natural life ; and 
firomand immediately aftar the decease f^the said Mary 
Muskett, upon trust, that the sud Charies Gillson 
Staplee, his executors^ adminiatiaton, or assigns, do and 
shall pay and apply 100/., part of the said sum of 500/., 
to Sosan Staplee, daughter of the s^d Charles Gillson 
Staplee, to and for her own use and benefit ; 100^, fur- 
ther part of the said sum of 6001., to Sarah Staplee, 
another daughter of the said Charles Gillson Staplee, 
to and for her own use and benefit ; 200/., farther part 
of the said sum of 600/., to Henry Tanstey, now living 
with the said Mary Mudcett ; and 100/., being the re- 
maining part of the said sum of 600/., to Lucy, the wife 
of Robert Tansley, of Crowland, in the county of Lin- 
coln, sawyer, to and for her own ose and benefit, ex- 
clnnire of the control of her said husband ; and for that 
purpose it is hereby ooTeoanted and agreed, that the 
said Charles Gillson Sti^ilee, his executors, administra- 
tora, and assigns, shall, nom time to time, pay and apply 
the same in such manner so as to effectuate the above 
intent and purpose." This deed was executed by Mrs. 
Muskett, she making her mark, being unable to read or 
write. The attestation was thus : *' Received heretofore 
the sum of 600/. Charies Staplee. Witness, George Pla- 
tel." Mr. Platel, the attesting witness, a solicitor at Pe- 
terborough, had prepared the deed, and ingrossed it, and 
doited Staplee and Mrs. Muskett, in eqnal shares, with 
the amount of charges and stamps; and no one but Mr. 
Platel, and Staplee, and Mrs. BMiskett were connected 
about the matter. The charges of the bill were, that Mrs. 
Hui^ett, when she exeonted this deed, conudered, upon 
the repreeentatioa of Staplee, that it waa a mortgage on 
his farm for the 600/., and that A* did not have 
the deed reed over or explained to her. The bill prayed 
that the deed mi^it be delivered up to be cancel lied, as 
being fraudulent and void, and as being a fraud upon 
the marital right of Grifj^ who was under a treaty of 
marriage with her at the time, and was known to be so 
hf Stanec. The case made by the answer was, that 
Hn. Muskett was, although ignorant, a very shrewd 
mamua of busiaes^ and knew perfbctiy well what the 
vwndiont; and that, aatlie deffwuhmtfa dai^ffatcn weie 



grandchildten of Mrs. Ashby, it was natural she riioult 
provide for them, and that she had that intention; aw 
as to the Tansleys, they were her own relation*. Fo 
the plaintiffs several witnesses were exanained, am 
among them Mr. John Ashby, Mr. Pearee, a snxseon a 
Peterborough, and Mr. Gacms, who, in Huir eVIdmoi 
thus spoke of Mr. Stwlee and of Mrs. Muskett. Mi 
Ashby B^d, ** I never bad dealims with Mr. Sta^ee ta 
my own account, hut he muried my aster, azid I ban 
been a good deal in hi8eomj>any. I think 1m is a tnai 
of good abiliUes and education. I went to aebool wiU 
him, and he was considered very clever there. He hai 
a good knowledge of business and of money transac 
tions, and I know, that, in matters of account, he think 
he is not to be beat.'* Mr. Pearce ^ke of Stwlee*i 
intimacy with the testator, and of the confidenceplaoec 
by the female plaintifi^ in him, (SUplee). ''He h« 
spoken to me about her health, and would speak fa 
miltariy ; such as, < Yon must take oaie of tiw little 
woman, doctor,' or in that way. She was very toad ol 
boasting of the mosey she had ; and one day, whan At 
named it to me, I said, ' Mind you take oare of it.' 
This was soon after Mr. Ashby 's death. She said, in re- 
ply, * He would always see her rig^ited.' She ulade<i 
to Mr. Sti^lee; at least, so I understood it. She seemed 
to place thegreateet reliuioe on him. She is, I think, i 
person fond of flattery, and what I should call a gnlliblt 
woman, who would be easily led. I think her quite 
ignorant of matters of business; she was a good serranf 
and a good hooadceeper, but from her want of educa- 
tion I considered her a servant only." Mr. Gache& 
the wife's solicitor, stated that Mary Gri^ wanted 
ordinary knowledge; was ignorant of the ordinal^ 
transaotionsoflife; ms eanly influenced, and very illi- 
terate, and that ^e would readily fall into the (uMmom 
of others; thai slw placed entire confidence in Staplee, 
and spoke of htm as the only friend she had to tell her 
mind to, and that, before acceding to anything, ^e 
would aay that she wonld hear what Charles sud, 
(meaning Mr. Staplee). Mr. Platel was examined as a 
witness on behalf of the defendants, and was croea-«xa- 
mined ; and his evidence was, in substance, as follows: 
— "That the femide pl«ntiff had directed him (Mr. 
Platel) to prepare a deed of trust, whereby the sum of 
600/. was to be settled, the interest to herself for life, 
but the disposition of the capital was not determined 
until after the draft had been submitted to her, when 
she requested him to insert the names of Susan and 
Su«h Staplee, who were the gtanddaughten of her old 
master, Mr. Ashby, and who were to have 1002. each 
after her death; and named, as the other objects of her 
bounty, her meter and her nephew ; that the ins^- 
ment was read over to the female plaintiff, who ap- 
peared perfectly to understand Its nature and eflect; 
that Mary Gnggs expressed no desire to consult any 
other party as to the aeed ; and that he did not know 
that Mr. Gaches was her usual legal adviser." 

Russell and Aa/tfer, for the plaintiffs, contended, that 
there were two important grounds for setting aside the 
whole tmnsaction : the first was, that Mrs. Griggs, a 
very ignorant and illiterate woman, had been over- 
reached by the defendant, a man of bunnees habits, and 
induced, in consequence of the confidence she reposed 
in him, to execute a deed, whixh die believed to be_a 
mor^we of his estate to seenre her nraney, when, in 
truth, she waa executing a settlement, by which her 
money would be tied up for her life, and pessib^ 
longer, and then given, as to put of the capital, fer hia 
own children ; and this deed executed in the presence 
of his own attorney, and not here, although she had a 
regular legal adviser. The second ground was, that the 
transaction was a fraud on the marital rights of Mr. 
Griggs; for the defendant very well knew, at the time 
of the execution of the deed, that a contmct of mar- 
riage exirted, and, therefore^ every di^osltion of her 



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THE JURIST. 



31 



fiiiyiti after that, without the knowledge of ifa« in- 
tmiei ksiband, was frandnloit tnd void. 

Smem and Sduym arnied, that the caws made by the 
UI ma ineanastcnt; finrif Mrs. Griggs was bo illiterate 
ad kill art and gnllibk aa to be the *tetim of such a 
fian, ai beinr eatni^Md to execute a stttiement when 
At tbn^t ue was execoting a mortvage, die could 
wi W a we»sii c^i»ble of joining in the other alleged 
fmA of jooaag with otbm in defeating the right her 
inboM nariiand would legally hare in her property. 
Tkt tmrn ^araeten of her, and the two thewies of tbe 
■hBnfir* bOl, were wfatdly ineonssteiit. Then, it had 
iam ameinei by the bill, that Hr.Platel, the attocney 
rfi fr . f < ii y ktf , had jofaed la thefrwad; while the case 
wait at tbe kar was of a Teiy diflteent aatnn ; and it 
vaa quite out oi all qaaatioB to m|^KMe that a atdicstor 
^■nrj faag Maadingand of great remeetability, nnder 
■y anwtnees, Mmld be beliered to hare so mts- 
eadactad himelf. Then, as to tbe fraud on the maii- 
iali^h^ ta ert^fish soch a case it is neeoHary to shew 
asi aaly thai there waa acnne talk or even intmtion of 
MEriagc, hmt timt a binding oonta;pct had been entmred 
■da brtaat p an wae by- the parties ; and that the d»- 
■r BBch eoDtiaet, and did the act eom- 
ai fsrtha pnipoae of debating it. 
' r^fcand tor partiM interested under tbe Kt- 



I Mply> rnaMrd that a cmtxHt of marriwa 
swy to aei^Nirt a ehai^ of ftand on the 
ngjht ; tat a mere intention to manr, and an 
■fii^ afterwards, were qnite enough. (Ood- 
T. Skam, 1 Rosa. 48fi, sad WaJU r, Gtorw, I 

MMar fiaocK, V. daring the arj^nent, ob- 
Krred, ** If a party, having no wicked or improper in- 
tBtthn, advaea a party to eater into an imprudent or 
iBptffrident tianaaction, and with that view takessuch 
•ther party to his own attorney, and the party who 
catm isio the transaction adopts the attorney and acta 

idvice ; and suppoung tbe attorney, from in- 

i^orance, and without any wicked or im- 
riatention, permitsthe completion of such impru- 
: er iatprovident transaction, rach a ease may not 
he poBitted to stand, althongh It may not be a case of 
&nd.* 

Km. 25. — KxiGHT Bruce, V. C, after staUng the 
sbjadtf fte mit and the history of the transacUon, as 
dUeaed by the evidence, sud — That Mr. Staplee, at 
■BW tnae or times before or after, or before and after, 
AecKcatiMi <tf the deed by Mrs. Moakett, did receive 
tnm her Money to the amount of 6001. at least, cannot 
he doeMed. It is, indeed, the case of himself and his 
daai^rtai, ftit he is chargeable with the capital sum 
■f MO£y neand b^ him from her, partly before June, 
IW% sod partly m that month, as he says. The 
t^tiMim by Mrs. Hnskett of the piece of nnstamped 
jMpo* aoay be thought not a cireum stance addmg 
i^Bgth ar credit to the deed ; but attributing in no 
wn that eirrumstance as favourable to the plainti^ 
mm suBiinii, that die hsd en intention in favour of 
At Taadeys, who were her relatives, and of Mr. 
8fea|i] Ill's dsngjiteTV, I apprehend it is impossible to 
Aeay Aat this deed was an instrument, the execution 
af whk^ was an indiscreet and imprudent step on Iwr 
fBt, The deed did not reserve or give to her any in- 
tenst — aay interest independent of coverture, nor any 
iOBfiagiDt or other power of acquiring security or in- 
nor of revocation or alteratien by will or 
, Kow, alUiongfa a widow, she might not 
' of aether mam^fe. I do not collect that she 
i past diildbearing, or that she thotuht Iwndf so ; 
■sseaTO', every person mentioiied in the deed might 
Wsse baakmpt, or die in her lifetime, or treat her 
9. Sr. Sl^ilee, however secure hb drenmstanccs in 
1MB|BD|^ paiulj ham heooDW or may beeome in- 



solvent, or a rerident In Fiance or In tike United States, 
or he may die worth nothing. If I were obliged, unon 
the materials beftne me, to express an <^inion wneuier 
more than half of what this uneducated servant was 
worth in the world was aflRaeted by the deed, that 
opinion would be in the affirmative. Can it be a ques- 
tion, then, under the circumstances to which I have 
referred, that she should have been recommended not 
to execute such an instrument ? That, ignorant and a 
woman as she was, she ought, before executing it, to 
have had the various particular respects in wbtefa it 
was objectionable brought under her attentiM), it must, 
I suppose, be in vain to deny. This duty would have 
been uicuml}ent on Mr. Gachee, if he had been eon- 
snlted on the subject, which he waa not. Aa the 
matter was transacted, that dn^ was cast upon Mr. 
Staplee and Mr. Platel, the only actors with Mrs. 
Muskett in the transaction of the settlement, or by one 
of these two gentlemen. Now, Mr. Staplee was not, 
and probably without the consent of the parties in this 
court could not have been examined as a witness in the 
cause ; he has, however, put in two answers, one to the 
orig^iul bill and one to the amended bill ; but I think 
it right to say, that his ctmduct, in reference to the 
matter in question, seems to me open so much to just 
observation as to render it imposuble to altow to those 
answers any weight agunM the fdainti^ ease. Now, if 
there Is proof that this woman received advice or asrist- 
ance on the sutnect ef the deed befinre her execution Of 
it, that proof ts afforded only by Mr. Platel's testi- 
mony; and whether that alrards anpr at all, I need 
scarcely say. What course the business would have 
taken if Mr. Caches had been consulted, cannot per- 
haps be said ; but, as matters were, it seems plidn 
eooDgb, that, whether from ignorance, from incapacity, 
from n^ligence, or from baa attention, upon the put 
of one or both of the two actors, each of whom, one or 
both, owed her tbe duty of advice and protection, she 
executed the deed without such advice, and without 
soch protection as she oueht to have had; and that 
the transaction is imposBible to be viewed with appro- 
bation ; or that the Cfourt, with any conscienoe, can be 
able to ascribe to the want of attention, of knowled^ 
or capacity, or only of delicacy, the manner in which 
this very ignorant and not very wise woman was left 
to execute this instrument. I may observe, that the 
compliments to her eepacity for bnriness, and the 
powers of her mind, which are paid bv Mr. Staplee's 
answer, seem to be confiued to those documents, and 
are not discoverable in the evidence. [His Honor read 
at great length the evidence before stated, and pro- 
ceeded: — ] Upon the whole, had the plaintiffs, by 
their bill, put their ease on those grounds which are 
sustained by their evidence, as I view and estimate it, 
and which are, in my judgment, not displaced by the 
opposing evidenee,u I view and estimate that opporfng 
evidence, I should, it is probable, have now made a 
decree in the plaintiSs* favour for tbe 500/,, and against 
tbe deed. But the bill, as I undeistand It, puts their 
case upon two grounds merely : the first being, that, 
independently of any question of fraud upon Mrs, Mos- 
kett simply, and whether, if she had remained a widow, 
she would or would not have been entitled to relief 
against the transaction inipeeched. It is invalid in 
equity against the other plaintifTs mantel rights, upon 
the principle laid down in Qoddard v, <!>'now, (1 Rues. 
486), and Wahe v. St. George, (1 My. & K. «10), 
and some earlier authorities there mentioned ; the se- 
cond being, that the deed waa the produce of sheer 
imposture, and plain cheating in the broadest maniier, 
BO as to be op«i cortunly to a criminal prosecution; 
that it «-as obtained mainly flmn Mis. MuskeU by a 
most disgraceftil con^iracy— a Buecessfnl conspiracy 
between Mr. Staples and nx. Platel to entrap her into 
the execution of the deed, tnder the fletum aadpfe- 



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THE JURIST. 



1 



tence th&t it was a mortgage merely for her security 
and benefit^ and tiiat she eo uoderstood it from their 
representations at the time. Now, as to the first of 
these two STOunds, if it had been proved in the cause 
that the plaintlfF Thomas Griggs was engaged to be 
moiried to the other plaintiff at the time when she 
executed the deed, and if it were also a safe inference, 
that, unUl he had married her, he was in ignorance of 
the tramaetion, and mthont any naefnl or mbstantial 
infitrmaUoD, I think that, although she is a eo-plaintil^ 
I should probably have ruled against the transaction 
at this stage of tiie suit ; but such a oasa ia, in mv 
<^inion, not established. There b, however, enough 
before me, in my judgment, to render it right for the 
Court, if the plaintiff Thomas Griggs wishes it, to 
allow the plaintiffs to try these two questions of fact 
before a jury: first, whether, before the time when 
Mary Griggs (then Mary Muskett) executed the deed, 
the pluntnt Thomas Griggs was contracted or engaged 
to be married to her ; and, secondly, whether, before 
the marriage, Thomas Griggs was aware or informed 
that she had made some settlement in favour of or for 
the benefit of Susan Staplee, Sarah Staplee, Lucy 
Tansley, and Henry Tansley , or some or one of them. If 
Mr. Gn^ shall decline to try these isBuea, as perhaps he 
not unwisely may, or shall fail upon either of them, I 
must, I think, hold, that the fint-mentioned ground 
fiuls. With regard to the second ground, the proof, 
also, in my opinion, is deficient, but not so far as to 
induce me, if the plaintiff Thomas Griggs wishes to tiy 
the issue whether the execution of the deed by his wi^ 
was fraudulently obtained, not to allow him to do so. 
Upon the pleadings and the present proofs taken toge- 
ther, I can do no more for the plamtiffs than I have 
said. If the plaintiA deet, and very poiribly it may 
be prudent tat them to elect, not to go before » jury* 1 
must, 81 the case stands before me, diamiaa the bill, 
without prejudice to anc^her suit. As to the coats in 
that event, it is true that some parts of the plaint! ffis' 
evidence are open to remark, and the imputation mode 
by the bill upon two persons, one of them an attorney 
of forty yeara* standing, is very grave certainly ; but 
when men have thought it fit to engage vrith an igno- 
rant woman of inferior station, able neither to read nor 
to write, in a transaction such and so conducted, as by 
sudi fiicts as are substaotially beyond dispute (what- 
ever the true state of the aU^ed facts that are not 
anbstantially beyond dispute) the transaction in ques- 
tion is shewn to have oeen, no fourth person being 
present, they ought not, I think, to wonder much, or 
to .complain heavily, that she makes the accusation 
against them concerning it which she has made, the 
accusation throughout being a charge of stating falsely 
to her the contents and nature of the deed, to the intent 
and with the effect of procuring or causing her to exe- 
cute that instrument or document, varying, to their 
knowledge, at the time materially, and wholly in form 
and substance, from her intention, and which chai|;e is, 
I agree, not proved. But had the charge been, as to 
one person, of wheedling her weakness and ignorance 
into the coramiasion of an act of indiscretion prejudicial 
to her and nseful to him, and, as to both person^ of 
omitting, whether by negligence through incapacity, 
from ignorance, or wilfoUy, to afford to her advice and 
aadstance whidi Ae needed, and which horn them 
were her dn^ my opinion as to charge mwht— I repeat, 
as to such a charge— have been matenally diflferent. 
If the bill is now dumiased, it must be without costs. 

VICE-CHANCELLOR WIGRAM'S COURT. 

WiKTUROP e. Murray and Others. — Dee. 9. 
PraettM—DumtMal— Order 118 of May, 184fi. 
Motiom to ditmiit/or vxtitt of Proieeution r^fvMdtWith 
Coat, it Ofptaring that O* Solicitor for ti* Par^ 



novmg had filed an Antmrfor another of At 2>^hm 
antt within the Period allowed for ebtaimng ass Or^ 
to amend the Bin. 

The bill in this case was amended a second time 4 
the 4th May, 1848. On the 10th June, 1848, Marx4| 
one of the defendants, filed his answer to the bill i 
amended, and, on the 30th October following^ sem 
notice of motion for the Idth November, to diwiiiiw I 
want of prosecution. Upon the motion coming on 
heard, itappeared, that tne answer of Harahall, anotli 
of the defendant^ had been put in on the Atfa Angu^ 
1848, and that the time for replying to ench answer, * 
of amending the bill, did not expire till after the 131 
November, the day for which notice of motion wi 
given. The only (question, therefore, was, by who) 
the costs of the motion were to be paid. 
Glaste, in support of the motion, asked for tlie coal 
Blderton^ contra, for the pluntiff, sud, that the di 
fendants, Marshall and Murray, had throughout tl 
cause been represented by the same solicittu', and so] 
mitted, that the motion, as it was made through a ad 
citor aware of the fact, that an answer had been file 
on the fitii August, was irregular, under Order 118 < 
May, 1846, by which it is provided, that a defendai 
tanot to be at liberty to move to dismiss a 1»1I for vraii 
of pnweention until after the expiration of the tim 
wiUiin which a plaintiff may obtain an order to amen 
siich bill. [He inferred to Qtlteri v. Bichardt, V. C. £ 
November, 1846, (unreported), in which case a motioi 
to dismiss the bUl for want of prosecution was refuaed 
with costs, it appearing that the solicitor through when 
the motion was made had also filed an answer for an- 
other defendant, the time for replying to which hac 
not expired at the date for which notice of motion wai 
given.1 

Sir James Wiqram, Y. C, refused the motion, witl 
ooits. 



COURT OF QU£EN*S BENCH.— Hilary Tkbh. 
Foster v. Tattbbsaix.— J<m. 12, ^ 

An AffidaeitofServieeofa Writ of Summofts made "w 
Mandojft the 'Uh December instant," i$ iaeufflcient; am 
tlie Dtfeet eannot be cured by Reference to the Date 
the Jurat, 

Pashl^ moved for a rule niu to set aside the writ it 
this action, and the copy and service thereof. The affi' 
davit of William Pratt TatteraalL of Bradford, ii 
Yorkdiirr, the above-named defonuant, upon which, 
among others, the rule was moved for, stated, That 
on Monday, the 4tb December instant, he, the deponent 
was served with the paper writing hereunto annexed; 
marked A., purporting to be a copy of a writ of Bum- 
monsin thiscause, issued out of this honourable court,*' 
&c. The jurat purported to be sworn before the commis- 
sioner at Bradford, on the 5th December, 1848. A si- 
milar motion liad been made before Patteson, J., at 
chambers, who refused it, upon theobjection then taken; 
that the affidavit was defective, in not stating a date 
The affidavit of the defendant 'may be read, as if it had 
stated that on the 4th December he wae served with the 
copy <tf the writ therein set out. ** Monday, the 4tli 
December butant,** b the 4th December, 1848, ii 
credit Is to be jgiven to the commisdoner who took 
tlie affidavit. The jurat authenticates the taking ol 
the affidavit as an act done on the 4th December, 
1848; and verba relate in esse videntur. (Prince v. 
Nicholson, 6 Taunt. 383, 337). In Hughet r. Brom, 
(7 Jur. 1136; 1 D. & L. 788), the affidavit was of 
service " on the day of the date hereof ;" there was 
no statement of a date, except in the jurat. {Cble- 
ridge, J. — The word " instant " has no definite mean- 
ing without referring to the jurat. The date of the 
writ is not referred to ae material to any foct stated 



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THK JURIST, 



98 



m iha afidsTH. Paltetm, J. — In Hughet t. Bromn 
the pMrt decided was, that the jaiat coaM Dot be re- 
, Jemd to.3 If the affidavit b false as to the fiKt sworn 
I' to, tbe party would be indictable forperjary. Suppose 
' fite eoBaiaintmer died before the affidavit was sworn, 
the pairty would be ^Uty of perjury. [Coleridge^ J. 
— SappoM the mffidavit was made in 1847, and it was 
nran in 1U& Wi^Mtam, J.— The jurat might be 
nnin in IHfl; and the affidavit might be of a met in 
IMj .1 The Conrt will nTe cre^t to the eommisdoner 
Stt ■fciairfpring the oath whenheaayaheadmioistered 
ii; md §oK ceanpirii^ with the mle of conrt, which re- 
aves that the day and place shall both be stated in 
the jw«L [PatUmm, J.— The word instant" is in 
iCidf iDssBsible, without refming to the jurat, and we 
caaaot do so nnkaa we overmle i/iwAet v. ^rowiif (7 
Jar. 1136; 1 D. & L. 788^. Lord Dmman, C. J.— In 
that csse^ Uaole, ea js, ^ The deponmt may not have 
aeca the jurat." The Conrt would never look out 
fio-sach an obiectioii astliis; but when it is pointed 
oet, it is cridently fatal.^ The jurat is an essential 
fart «f the affidarit: there is no reason why the party 
mUbK the affidavit ahonld not see it. The Conrt will 
aat minic ptaitx atrictnesB In an affidavit than in an 
iadkkMAt naBd jarors danot see the caption, [Lotd 
Dmmmk, C. 3.— The grand jurors know the day on 
which tfcij an attiiv/] 
Br ZHMtbcaz*. — MuU r^iued. 

Rao. e. Crickudb.— Jon. 12. 

A mm TVmI fie ffrtmled In a O^ama/ Oa$e after 
AegtuttaL 

Infictaaaatfar the BMi-rcpair of a highway. Flea, 
■et gmhy. Oa the trial, before Piatt, B., at the Spring 
Aaaaes far the county of Wilts in 184^ the defence wai^ 
that the road in quertion was not a highway ; and the 
jBzy fcaad a verdict for the defendants. In the £>1- 
Easter Term, (April 20tli}, 
CraMcr moved for a rule nisi ror a new trial, on the 
pond ef miadircetion and the verdict bdng against 
ttc mimet, — [Ixnrd Jknmau, C. J.— The practice has 
km to move ta stay the judgment until a new trial 
kiibeen had.3 This was an indictment preferred by 
trier «f jmrtices; and if a second indictment was pre- 
fand, it weald not be under that order; and, there- 
Int, ih* pnaceatoTs would not be entitled to costa if 
Ihnr meeecdcd vpw the trial of that indtctaient. 

tmi DtoauMf C. J.— We think that yon need not 
flCBsrt te a motion to sn^>end tiie jndgment. V^e are 
net bound bv the ordinary practice in this case. A 
metioa may be made directly for a new trial, if the ver- 
ffid afftan nMBtidactory. 

Ttxntea, WiOHTiiAK, and £blb, JJ., concurred. — 
Mwie am tmrimgljr. 

Cr m imMm i and Hodges now shewed cause. — In Bex 
V. SuOm, (5 B. & Ad. A2), which was an indictment 
iar the aoa-repair of abridge, Lord Denman, C. J., said, 
[p. 37)," Upon conuderation of all the points that have 
Mcn TsiseJ, we are not disposed at present to make the 
p iece d tn t of mating a new trial; but we think the 
Mcedmi ia Rm r.Wmid$worlk (1 B. & A. 63) may 
W vejy pmmlj followed here by so spending the jadg^ 
MBi. Thai a new indictment may be preferred ; and 
the poiats that have arisen may be oiscnsaed npon 
ihaL^ [Lord /^mwk, C. J.— We made the precedent 
IB Big. T. CSerJgr, (12 Jar. 822). The judgment of 
this Court must be given npon the verdict ; and we will 
not pve jndgraoit upon a verdict which we see to be 
wmg.3 In JEe^. T. Chorl^ there was an improper 
reoeptieB of endmce. {IautA Venmanf C. J. — The 
■TV trial ia that case proceeded upon no distinction 
^fitttever, bot apca what we felt to be the good sense 

«lAd P , C J., lUiason, Colsri^, aadVight. 



of the mattOT.^ There is no spedal finding in thiscase 
which can injure the prosecutors upon tlie trial of 
a new indictment; and there were objections taken 
at the trial, but no cross rule was moved fin-, on 
the supporition, that the established practice of the 
Court was, as stated by Lord EUotborougb, in Bex t. 
W<md$woith, (1 B. & A. 03, 05), not to srant a new 
trial in a criminal ease where the verdict nad been fw 
the defendant. {Coleridge^ S^TYm mode of intend- 
ing the entry of tne judgment adopted in that case was 
a novelty. Lord Denman, C. J.— It was, in iact, an 
evasion resorted to, upon the ground that the Court 
would never interfere with an acquittal in a crimiaal 
case, which is erroneous*.] 

The CouBTt, being <rf opiiuon that there had been a 
misdirection, made the mle abidato for a new bialv— • 
Bute abeohUe. 

£XCHE<iU£R CHAMBEB.— Tbik. VACAtioir. 
[Error from the Qneeu*s Bench .3 
Thb BIatob and Aldbbmbic of Lohdon r. Reo. — JuM 
19 1848. 

By Sect. 27 Stat. 6^7 Viet '. «. 73, Attomiet of the 
Muperior Courts 0/ Law at Wettmituter are entitled to 
be ofbnitted at Juiomiet M at^ inferior Court of Law 
in England and Walet. 
Mandamut to the Maj/or and Aldermen of London to 
admit A.f an Attorn^ of one of tie superior Courts at 
iVestmituter, to be an Attorney of a'* certain inferior 
Court withm the City of London, called The Lord 
Jfayor's Conrt, on tigiiina the BoU of the eaid Court*** 
JKeftini fftrfeif the Lord Mayor's Coari to bean imm*' 
merial Conrt ofBeeord, having by Custom Jurisdiction 
at a Conrt ofLa/m and a Cotui ofEouity, toith imsm- 
morial and peeler PrinUget, •mtcA were set forth; 
and that there had been immemorially four AtUuniet 
onfyf who wjoyed the exdutiee Bight of practising in 
th<a Court, and some of whose Duties were peculiar; 
and that their Offices were the StAject of Purchase and 
Sale, and that there was not, and never had been, a Boll 
for the Applicant to sign:— Held, that the Writ was 
bad for not stating the Mayor's Court to be an inferior 
Court of Law; and that the Defect was not cured by 
the Admission in the Betum, that the Mayor's Court 
was a Court ef haw. 
QuterCy whether Sect. 27 of Stat. 6Sf7 Vict. c. 73, applies 
to all inferior CowU af Law, whether thiy have or 
Aose not a Sail ifpoa wJHeA lie Ifamei ef Attomiet 
practising in them are inscribed f 
A writ of error was brought npon the judgment of 
the Court of Queen's Bench in this case. (See 11 Jur. 
867, where the pleadings are fully set out). The points 
for argument on the piut of the pluntlffs in error (the 
defendants below) were, That the w{it of mandamus is 
insufficient; that it does not sufficiently appear therein 
that the Lotd Mayor's Court, therein mentioned, has any 
roll of attomles, or that it is a court within the meaning 
of the act of Parliament in the writ mentioned, so as to 
entitle the said William Henir Ashurst to be admitted 
an attorney thereof. Bat if thewrit be niffi»«it, thai 
the particular focts disdoeed hy the return shew that 
the aud W. H. Ashurst Is not entitled, and om^t not 
to be admitted an attorney of the s^d court. The de- 
fendant in error (the prosecutor below) stated the fol- 
lowing points for argument: — First, that the return to 
the writ of mandamus herein does not disclose a suffi- 
cient answer to the cimm of the said W. H. Ashurst to 
be admitted an attorney of the Lord Mayor's Court, 
pursuant to the 6 & 7 Vict. c. 73. Secondly, that the 
return is legally insufficimt and infimnal, inasmuch as 
it neither traveiees the all^Uons contain ed in the writ 

* See Sex v. The MmMantt ^ the West Riiimf iff rort. 
f«rw. (S East. SS2. note 1 1 Chitt. 354). 
t Lord Dnmmb, C J., Fattssoa, CoM4fs, and Bris, 



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THE JURIST. 



eg mapdamaa, nor shem anj defeet therdn or in the 
pienonB procesdii^ nor lets forth any coumae for non- 
ccraplia De e with the wiiL ThinUy, tiuA the sud re- 
tom travel^ matter of hw, BetUn^ op a local enstom 
bx oppodtion to the Mid aet of Parliament. Fourthly, 
that the said return is uncertain, argnmentative, in- 
formal, and in other respects legally ininfficient. The 
case was argued in Michaelmas Vacation, (Dec. 4, 
1847), before WUde,C.J., Farfce, B.» Alderson, B., 
Coltmaa, J.^ Mania, Rolfo, Piatt, B., and Wil- 
liams, J., by 

Owtt^, for the plunti£b in error, (the defendante 
below).— The words of sect. 27 of stat. 6 & 7 Vict. c. 73, 
upon which this writ is founded, are ^rmative and 
gmeral ; and such words do not take away the eom- 
BOD lafw nor « former outom. (Co. Litt. lift, a.; 
Com. Dig. "Parliament," R. 23, 24; A» v. Pvffh, 
Doug. 179; Simpson t. 3fou, 2 B. & Adol. 543, 
upon stat. fiO Geo. 3, c. 41, s. 22 ; The Mayor of 
Leicester v. BurgeUy ft B. & Adol. 246; 2 Nev. & M. 
131, upon Btat. 11 Geo. 4 & 1 Will. 4, c,64; Rex t. 
Pb^A, 1 Dougl. 188). If it is intended to abrogate 
existiog customs, the usual course of the Legislature is 
to refer to them, either expressly or by the words 
" any local custom or usage to the contrary notwith- 
atandiog." £He cited stats. 3 Geo. 3, c. 8 ; ftG Geo. 3, 
c,7: 11 Geo.4&l Will.4, C.70, 8.10; 6 & 6 Will. 4, 
c 76, ss. 1, 14, 119.3 Tbere is no provision in stat. 6 & 7 
yieX. c 7^ similuto that in seet. 118 of tiie Municipal 
Corporations Reform Ad^ 6 & 6 Will. 4, c. 76, which 

Kve power to the judge of the court of record in 
roughs to make such rules for r^ulating the pracUce 
of his court as were necessary, in coDsequence of the 
change iotrodaced by the proviso In sect. 119 of that 
statute, which opened those courts to all attomies. 
The rule applies more strongly to the customs of the 
city of London than to those 01 any other corporation. 
In The case of the Citjf of London^ (8 Co. 121 bj, Lord 
Coke says, (129 a), " In London, a citizen and freeman 
may, by their custom, devise in mortmain, notwith- 
standing the Statute of Mortmain be to the contrary ; 
and so in other like cases: for all the customs of 
London are established and confirmed by act of Par- 
liament:*' citing stat. 9 Hen. 4^ which is not now in 
the roll of Parliament. In Yin. Ahr. ** Statote," £., 
pL 10, citing The Mojfor ofLondom v. Btamardiaon, (I 
Lev. 14), it is said, ** The castoms of London are of 
such force, that ther shall stand against negative acts 
of Parliament," [He also referred to Kelynge, C. J., 
in Basting's case^ (1 Mod. 23) ; Qillman v. Wright, 1 
Sid. 410T; Rex T. The Chamberlains of Worcester^ 
(2 Ld. Ken. 472); Rex v. TolUn, (1 RoU. 11); Rex 
V. Bagshaw, (Cro. Car. 347); Appteton v. ^ough- 
totiy (Id. 516); and The Salter^ Companv v. Jay, 
(3 B. Rep. 109), upon stat. 2 & 3 Will. 4, c. 
71, B. 3, which contained the words " an v local cus- 
tom or usage to the contrary notwithstanding.*'] 
The stat. 6 & 7 Vict. c. 73, does not manifest any 
intention on the port of the Legislature to abrogate 
the immemorial custom prevuling in the city of Lon- 
don, by which the number of attomies in the Lord 
Mayors Court is limited to four. The title and the 
preamble shew that its object was to simplify and 
amend the laws relating to attomies and solicitors; 
and there is a schedule of statutes repealed, but among 
them there are none relating to or founded upon enstom 
or usage. By stat. 6 & 7 Will. 4, c. 76, which did not 
affect the city of London, all inferior courts in other 
corporate towns were thrown open ; and the object of 
Stat. 6 & 7 Vict. c. 73, was to make regnlationa accord- 
faig to which attomies should be admitted in those 
courts. Further, it appears that it was not the 
inieiiUoii of the Lq^islatare to inelode the Blayor's 
Court. The wwds in aaet S7 apon iHpuBg the 
zftD of such coofC, iMt not eClMrwiae f tdi then aerer 



has been a roll of attomfes in the Mayor'a Conrt. I 
the judgment of the Court of Queen's Bmch it is «ai< 
** This objection, if available, would have the efitect < 
taking a great proportion of the inferior oottrts of En^ 
land and Wales wholly out of the operation of the 27t 
section of the act, as there can be no doubt but that 
very great number of inferior courts never had a roll < 
attomies, or any other roll, apon which the name c 
the applicant for admission under that seistion oould b 
inscribed." But stat. 2 Geo. 2, c. 23, which is on 
of the statutes repealed by stat. 6 & 7 Vict. c. 73, re 
quired that there should l>e a roll of attomies in cTei^ 
court of record in England, exciting, by sect. 26, thi 
Mayor's Court and uie Sheri^s Court in Londtni 
Again, nearly all the statutes by which courts of re 
quests are establkhed inflict penaltiee upon attomie 
practising in them ; bnt those courta, not miiw court 
of record, have no rolls. Can it be contended tha 
thoee statutes are repealed, though not mentioned in thi 
schedule of repealed statutes t \Parlie, B. — A oomt 
requests is neither a court of law nor a court ef equity 
the 27th section is only intended to apply to infeiioi 
courts of law.] In Re'Oeddtng, {2 l>. ec L.9l5t nom. 
Re Credge, 3 Jur. 470), it was held, that the vnierai 
words of sect. 37 of this statute, as to referring biUa U 
be taxed, did not apply to bills for ageney busnesB 
[_Maule, J. — That is because the InirinesB was not doiM 
as attorney or 8olicitor,whicb must be the meaning of thi 
statute.] Lastly, the writ states that the Mayor*sCoarl 
is an inferior court^not that it is an inferior court of law 
or an inferior court of equity ; and the return atate^ 
that it is a court of law and equity, and snch a court is 
not within stat. 6 & 7 Vict. c. 73. The statute requirea 
distinct examinations for attomies and solicitors before 
they shall be admitted as such ; and if this mandamus 
can be supported, a person who was an attorney only 
would be entitled to practise on the equity side of the 
Mayor's Court, without having submitted to the exa- 
mination prescribed for solicitors by the statute. 

Pulling, contra. — First, there can be no immemorial 
custom, limiting the number of attomies entitled to 
practise in the Mayor's Court. (Littledale, J., in 
Rex V. TTie Sheriffs of Yorl, 3 B. & Adol. 770, 778). 
There was no attorney before the Statu.te of Merton, 
(20 Hen. 3), c. 10, which first gave the right to appear 
by attomey: before that statute, it could only lie aone 
by license from the Crown. {3faule, J. — The Statute 
of Merton says, that every freeman which oweth suit to 
the county, &c. may freely make his attomey to do 
those suits for him. It seems to assume that au attor- 
ney was known at that time. Parker B. — By the com- 
mon law a suitor could not make an attorney until be 
had appeared ; tlien the Statute of Westminster 2, (13 
Edw. 1 ), c. 10, enabled him to appoint a gener^ attor- 
ney to sue for him ; {Beecher's ease, 8 Co. 58 b; Com. 
Dig. "Attomey," B. 4); but attomies might exist at 
common law.] The custom as to the number of attor- 
nies practising in the Mayor's Court was not imme- 
morial, but a relation only. In JRex v. The i^er^ 
of Yorl, (3 B. & Adol. 770), which was a mandamus 
under the repealed stat. 2 Geo. 2, c. 23, it was held, 
tliat a bye-law, limiting the number of attomies who 
should practise in a borough court, was valid as a mu- 
nicipal regulation ; and it is a general principle, that all 
courts, inferior as well as superior, have a right to re* 
gulate their own proceedings, and who shall appear to 
practise in them ; ( CoUier v. Hicisy 2 B. & Adol. 663) ; 
but regulations excluding attomies from practising m 
any court cannot be made since stat. 6 & 7 Vict. c. 
73. In Rex V. The Sheriffs of Fori, (3 B. & AdoL 
770), Lord Tenterden (p. 777) mentions this regula- 
tion as to the number 01 attomies allowed to practise ia 
the Mayor's Court, as confirmed by act of Pariiameot; 
which ststute ww the 2 Geo. 2, c 23, Tboe was 
originally a general right to appear by attomey ia the 



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THK JUBIST. 



M^vt's Ccmt i that right vaa afterwards girm to fi>- 
Tgigawi M wdl as othen^ the 9th charter of Hen. 3, 
mtei m the SSnd year of his reign, which confirmed 
ri%lit<rf'tbecHj'toboldaooartDfhii8tuin. (4 Inst. 
I). That cfiartcr b confirmed by atat. 7 Rich. 2, (4 
lart. 23^ 253X which ctrnfinDed all the costoms of tbe 
«ityef LuodoD; and, as it affeoto a public ri^t, the 
Gmtwin tak« indinal wtiee of it, and of the statute 
vbbeaafinM it. (Theease of lie /iftajTaw Sfari^ 
JNU,Sa.&Fln.fll3, fil8«). The cnstom, as alleged 
in the rctoim, ts objectMmahle for want of certainty; in 
^■pBf that, ** from time whereof, &e., there of right 
kan beta, aikd still of right ought to be, certain clerks 
eractaniee of the said court." Further, there cannot 
ftea castqpi in tbe nentive; and that fbor sttomies 
bad a right to exelnsire audiraoe in Uie Mayor's 
Cent woald be Biatter of preseription. Secondly, 
■■nkkg it to be a ^ood custom in its origin, and that 
tte dli^iitiiu of it IS unobjectionahle, it cannot arail 
the gmerai words of sect 27 of stat. 6 ft 7 
ncL c <3L Sr Edward Coke was Recoider of Lon- 
4m, tmi his statoneitts relating to the enitomB of the 
otj mmt ha reeaTed with oaatim; he haa adopted 
fi«m texb-benks statonents nneeting them which aie 
mULwuftoAmk Vt anthoritr. The passage dted in Tin. 
Aht -Stoiat.,* K., 6. pi. 10, from Mt^m- of Lm- 
dm T. Banmribim, {\ her. 14), is at most an extn- 
fmHoMi diriam, because no question of a nentire sta- 
tirte ame in that eaae. The general principle ii^ Pos- 
iHimcs 1cm prions oontrariaa abrogant. In 2 Inst. 
Ji^ Irfvd thus expresses tiie role as to affirmative 
ndacgatiTe atatates: ''A statute made in the aAr- 
■■tin, without any negative, expressed or implied, 
Mh Mi take away the common law ;" mid Hr. Har- 
nne (Co. Lht. llfi. a., note IfiS) save, ** This seems to 
W Ae/aateat way of statiiw tbe role, both as to com- 
■iAkwakdeaatamh" [He also dted note lfi4.] If 
^ vpm an examination of an act of Paiihuaen t, 

ttmt is the obvious intention of the Legislature to 
■V«sl afKvioua law, that law must be regaled ; and 
^■hat tat of the intention of tbe L^islature is, whe- 
Avlftr ftrrions law is ineensistent with the new sta- 
tete er BSC In Hmxomt v. JW, ( 1 Show. fi06). Eyre, 
C. mid, (p. 520), StMotes iatrodoctire of a new 
l«w,ptM ed in tbe ^rmative, do always repeal former 
MiAttBs eaMsmng the ssme matter, as implying a ne- 
§i**e-" [He cited Ber v. CSrtor, (4 Burr. 2026) ; Eg 

5f OwT«W», (9 Essl, 44); Papel v. Fol^, (2 
',Jf.C.m)', Resr. The Tnmtnof&ut Ni^MaeK 
Witntf Bmdt, (fi B. ft Adol. 978) ; Burnt v. Car- 
«>vr» Kag. If . C. 429).] Magna Charta, which pro- 
Mails meftaMn vnder certain cirenmataaces) uid the 
^■Mc «f Vertaiimn, 23 Hen. 8, e. 10, t. 6, contain u 
«pcm exemion in fiivour of the etutoms of London. 
TW »bject oT rtat. 9 Hen. 4, cited by Lord Coke, in Tie 
tmrffAeO^^lmdm, (8 Co. 128 a), was to con- 
* aim referred to a bocdc in tbe loner Temple U- 

hvy, aCitakd. " Tbe Gxj Law, or Cotnw of Practice of all 
Ifcmwrf JaiBtiJ Proccedingi in Hmtiiiga id Goildhili, Lob- 
4m. Es^Ued etf of as ancient French MaMucript, 1642." 
Om Oa dOcr^ adde4, in a note, laid by Mr. Uargrare 
to he Matin VrighCs, " called Danthonw, an ndaiit 
* ^kneaeh,ta*UehtheaulOBawen ra^steradi" pro- 
ne caBad from Oa kHm-deric <tf tbat tine. ItwrnaU 
I te pmve mme at Ott eaateaia of tbe sitjr of Loadoo, In 
7^ w. Jtadt (Skum. 649). He read the bUowiog ex. 



** Item. — Evoy aUerman of LoDdon nay, by nnge, record 
rttaaaiei in ^eas d q | >m < lin g in tbe Sheritr's Court, and eepe- 
ci^mtfaBhasliKB and la theAsnber." (P. 54). iW 
k, fta L«d Mayors Cowt, held in the chamber fai OnOdban. 

"That aB (caenl attomiea made and reorived wHbfai tbe 
SHftar ef lie SbaVof London are beM to be apon leeord, 
m w« a if t^wwe takoa in tbe cearts faeU at Guild- 
am, mA aCaonies bk not to bs antated hi the p^ar of 



firm the customs of London, which had been infidngad 
upon by previous acta of Psriiamaai. In seet. 40 of 
Stat. Blis. c 40, npM ^eh i2aa v. Boffthaw (Cn. 
Car. 347) was dedded, there was an expfcm reservatiaB 
of the customs of London. Id Simmtom v. Jfoas, (2 B. 
& AdoL 543), and 7U Majfor of Lneetim' v. Bwrmm. 
(5 B. & AdoL 246 ; 2 Ner. & H. 131), the Court oon- 
stmed the old kw to be not inoonaiatent with the new 
statute. rAldertm, B.— Th« question ii^ whether A* 
Btat. 6 & 7 Viet, c 7S, and the custom, are iaoon^stsBL 
Parte, B. — This custom must be oonudered as haviiq; 
the force of an act of Parliament, because all tiie custom 
of the city that have existed from time immemorial ai* 
confirmed bv acta of Pariiament.] Many general at»> 
tates, though th^ do not contain a non obstante clause, 
must apply to London, as stat. 36 £dw. 3, c. 15, iriiich 
enacts, that all pleadings shall be in Engliui. {QriHimg 
V. Wood, Cro. Elia. 86). So, the acts for rerol^ttf 
weighU and measures. {NMe r. Dureil, 3 T. R. 271). 
IdfauU, J . — Tboee acts wwe passed for the verr purpose 
of putting an Mid to customs aoeording to whicn weicfati 
ana measures varied in diflereat paxts of EnglBnd. j Tha 
atat. 6 & 7 Viet. c. 7^ is a general act nuting to the 
laws previously exlstii^ m to attoniias. {Mtms, 
If the statute intends only to coBsolidato the sets of 
Pariiament and other general laws relating to attonrfas^ 
it may not aj^y to London.] The stat. 33 Hen. 9, 
c. 7, which enacted, that there should be but six at- 
tomies in Norfolk and Soffbllc, and two in Norwich, 
must have been r^Kaled. [AldMtomy B. — There aes 
aeveral eeotiona in atat. 6 & 7 Viet, c 73, aoeh aa thoat 
which relate to taxation <^ bills, which oonld aa pro- 
periy apply to the attmnies practinng in the Mayor's 
Court as to any others.] The 4tii asetimi of tbe Statute 
of Fmuds, 29 Car. 2, e. 3, though it doea not contain a 
non obstante clause, must have repealed the custom of 
London, by which an action of den would Ue ag^iak 
sureties without writing. [ Jfa«2«, J.— It was tiie gsM- 
ral ou^m of ths realm bnbn the Stetnto of Frandi^ 
that a surety by parol might be sned.1 Again, tha 
custom in London to pam houses and lands Iiy parol 
(2 luat. 675) cannot prevail against the drd section of 
the Statute of Fnuds. The 36(h section of staL 3 & 4 
Wilt 4, c 27, which abolished all real and mixed ac- 
tions, expressly mentions the writ of rii^ht in London. 
But there are many forms of action which nught hai« 
been commenced in the Court of Hustings ; can it be 
contended, that they may still be brought notwithstand- 
ing that section, though not mentioned in it ? There it 
a custmn in London by which a freeman may wage hii 
law even in actions a trespam; is not that abolished 
by seet. 13 of stats & 4 Will. 4^ e.42, by which it is 
oiaeted, ** that no wager d law shall be hereafter 
allowed!** There is also a custom in London as to 
fines and recoveries. (Beeiwkh't mm, 2 Co. 57; Nmi- 
ler V. The Bishop «f fVimeketter, Hob. 220, 226; 
LmOer v. BmAm^, 3 Dy. 290 a). Is not that custom 
altered by sect. 2 of stat. 3 & 4 WilL 4, e. 74, which 
enacts, that **any fine or common recovery whidi 
shall be levied or suffered contrary to this provirion 
shall be absolutely voidf* By the cuetom of London, 
a creditor may, before the day of payment, arrest his 
debtor, uid oblige him to find surtiee to pay the money 
oa the day it shall beoome due,** (Bac. Abr. " Guatoms 
of Limdon,^ Q.), if he is snapeeted and likely to beoome 
fugitiva. (Bertim r, Adbmnt, 6 T. R. 760). Is not 
that custom sbdtthed by stat. 1 & 2 Vict, c llOt 
[Poriv, B.-^That Is an act for abolishing arrest an 
mesne process, exc^t in certain cases. The arrest 
UmA to in that custom is not on mesne process, — it ia 
a proeeM by which a credHor is entitled to cat a bette* 
security from a surety. It is do«l>t{hl whether that 
is repmled.l At any rate, it ia partially repealed 
by stet. 19 Geo. 3, e. 70, which cmaets, " that no per^ 
son shall he arreetad or hdd to apeoid bail i^on vtj 



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38 



THE JURIST. 



prooesa usaingontof any inferior eoart where the cause 
of action shul not amount to the aum of 101. or up- 
wards." At the time of the passing of stat. 6 & 7 Vict, 
c. 73, there were laws in the city of London relating to 
attomies and solicitors. The stat. 2 Geo. 2, c. 23* con- 
tained general provisions for the regulation of attomies, 
api^ying to all courts of record ; and, therefore, to the 
Hayor'a Court. Stat. 6 Geo. 2, o. 27, enacted, that per- 
sons admitted attomies in the coorts at Westminster 
should tw capable of Iteing admitted to piaetise in any 
inferior court of record, pronded they were capable 
and cfualified, according to the usage and custom of 
such mferior court ; and it reserred the rights of at- 
tomies in the Mayor's Court. Other statutes are re- 
cited in stat. 6 & 7 Vict. c. 73, and repealed, and their 
provisions are re-enacted without the exception or re- 
servation contained in the latter. If the 27th section 
of stat. 6 & 7 Vict. c. 73, does not apply to the Mayor's 
Court, the sections which require certain ((ualifications 
in persons to be admitted attomies do not apply. The 
letum does not state that any qualifjcation is oeceeeary, 
nor that the Court of Aldermen have Any control over 
their admisrion, but only a power of dismissal, which, 
the clerk or attorney's office being a corporate office, 
would only be exercised for some cause recognised by the 
conunon law as to corporations, and not for such causes 
as this court would notice. [^Parie, B. — Supposing the 
applicant to be a solicitor in the Court of Chancery, 
would he be entitled, in equity matters, to practise u 
the Mayor's Court?] He would he entitled to practise 
in like manner as if be had been sworn in as an attorney 
of the court. lAlderMUj B. — There is an oath to ha 
taken upon admission*, which binds the party to many 
things, and, among others, to keep secret the books 
concemiuf the customs of the city .J The statute does 
not prescribe the mode in which the party shall be 
sworn : he would not have to take tiiis oath. [Alder' 
MM, B.~-If the oath is a good one^he party ought to 
take it, or not to be admitted.] There is no duty re- 
lating to an attomey prescribed in the oath which 
would not be incnmbient upon the applicant as an at- 
tomey : the other parts ofthe oath apply to the office 
of clerk or officer cS the court. IParie, B.— The ar- 
gument on the other ride is, that the Legislature did 
not intend to interfere with a court having attomies 
practising in it bound by such an oath.] The granting 
of this application will only enable the party to prac- 
tise as an attomey : it will not give him a nght to be 
a corporate officer, and perforai tboee functions, such 
as giving security for ban, which are stated in Uie re- 
turn as belonging to the attomies now praotleing in 
the Mayor's Court ; and the power whkb this Court 
has of punishing attomies ia inferior courts for misccm- 

dnct {Evans v. ^ 2 Wils. 882) is a better security 

than the power of dismissal b^ the Coart of Aldermen. 
The Mayor's Court is an mferior court, (Hale's 
Analysis, by Runnington, 24, 2B ; Bae. Abr. ** Courts," 
D. ; 3 Bt. Com. 80). IGum^.—lt is admitted, that 
the temi ** inferior court" is law enough to include 
the Sd^yoi^s Court, but not that it has all the incidents 
of an imerior court; for instance^ there is no inferior 
court which has a criminal junsdiction by virtue of 
which an ex officio information may be filed in itf.j 
It must i^pear npou the face of*^ the proceedings, 
that the cause of action arose within the jurisdiction. 
(SorUm T. ^edbsofi, 6 T. R. 760, 764; Morrii v. 
ZMdbm, 2 H. BL 362). In Com. Dig. "Abatement," 
(H. 24), 9, it is said, ** The pendency of a suit in 
an inferior court, thus — in London, Norwich," is not 
allowable. A foreign attachment or other proceed- 
ing pending in the Mayor's Court is no answer to 
Ml action in this court, (^itft v. Offte^ 6 Taunt. 74 ; 

• See the oittit eet forth ia the rebum, 11 Jar. 869. 

t See the Jorisdiction of the Lord Maw's Coart is thk 
respect stated in the Man, 11 Jar. 868. 



Serry v. Bower, Cro. Eliz. 186). It cannot fjrsnt 
□ew ti-ial. ( BlacquUre v. Hawhinty 1 Boogl. 378, 380' 
The Mayor's Court bad no power to compel the attend 
ance of j urors, before stat. 29 Geo. 2, c. 19. The conrl 
at Westminster exercise control over the Mayor's Com 
by writs of mandamus, prohibition, habeas corpus, an 
certiorari. {Jordan v. CoUt 1 H. BL £32). The ot 
servations of Lord Maiufield, iu Rex v. The ChamberUiki 
o/WbrceHer^ (2 Ld. Ken. 469, 472)j apjply to tbepni 
tice of removing civil causes by writ of habeas corpi 
cumcausA. InSH/inerT.jroraAa/j;(fiB.&A.82l;lI 
& R. 537), it was held, that a jud^ent upon foreign af 
tachment was not within sect. 4o^tat. 19Geo.3, c. 70, bi 
cause itis not afinal judgment, and confers no right to th 
property attached. ( WeUer v. Rueter, 1 B.& B. 491 
Holt v. Murray, I Sim. 484). The Mayoi's Court u a 
inferior court, though, by custom, it has some iociileni 
not belon^ng to an inferior court, and though it tu 
equitable jurisdiction, as the Mayor's Court of York hsi 
Afartin v. Marshall, Hob. G3). In Clifford v. JioitM 
1 Dick. 33), and The Mtmor of London v. /hmw 
Carey, 60), the Court of Chancery interfered with th 
layer's Coart of Equity, which is a distinct court, bel 
before the Lord Mayor, called The Court of Consrieaei 
(4 Inst. 248). There are two distinct courts. The «ri 
properly describes the Mayor's Court as an inferior coarl 
and the applicant could not traverse the aliesation ii 
the return, that the Mayor's Court is a court of lav am 
a court of equity, because the courts at Westtninste 
will take notice ne to what courts are inferior; iti 
matter of law. {Laughton v. Taylor, 6 ftlee. & W. 696) 
Further, it ia an inevitable consequence of its being i 
court of law and a court of equity, that it mixes up vai 
confounds law and equity. [RtHfe,^. — Before the »bo 
lition of the Courtsof Great Sessions in Wales, the^ ww 
courts of law and equiU-. J/euAf, J. — ^The cucum 
stance of the existence of an equitable jurisdiction sni 
a legal jurisdiction in any court shews that tbey maj 
exist without being confounded. Motfi, B.— Tiiere t 
no precedent in this country for any court of equit; 
which is not also a court of uiw. The Court of Chan 
eery is botii a court of law and a court of equity, thoogi 
it is obsolete as a court of law. Soj the Court of Kx 
chequer was a court of law and equity.] If the man 
damus had described the Mayor'^ Court as a court o 
law and a court of equity, it would have been bad fi» 
duplicity. This Court will recognise what its jarisdw 
tion is, {HolUngahed v. King, 1 Leon. 284; 4 Leon. 182 
Bramerr. fratftB#,16Mee.&W.77; Beiwieir.SlieKii 
3 Bing. 4fi9). If any tribunals whatsoever attempt ti 
exceed the limits pnseribed to them by the commM 
law, the courts of common law at Westmmster probibi 
them, (3 Bl. Com. 87); and they could not do so, no 
decide other questions arinn^ out of proceedings in tfaem 
without taking notice of their jurisdiction, whether tbej 
are courts proceeding according to the course of tb 
common law, or courts proceeding according to statute 
In Ese parte Awimm, 02 Jur. 461, 456), the Conrt o 
Queen's Bench took notice of the jurisdicUon of tin 
SheriiF'a Court. The term " inferior court" mna 
mean inferior court of law. [He cited 3 Black. Com 
80, 87.] As to the objection, that the Mayor's Coor 
has no roll, the stat. 6 & 7 Vict. o. 73, impliedly dusM 
it to procure a roll, according to the maxim as to tbi 
incidents of a general right, ** Q.uando lex aliquid alieii 
concedit, conwdere videtur id sine quo res ipsa oti noi 
potest;" and "whenever a statute gives or provide 
anything, the common law provides aU necessary reme 
dies and requisites." (2 Dwarris on Statutes, 6^; 
This Court will not assume that an inferior court M 
not a roll. (aattcrUick v. Hulls, A D.Si L.dO). 
derton, B.— If it appear that there is no roll, how cou^< 
the writ be complied with t] If the sUtote imphe<>l: 
nqiuxes the Mayoc's Court to proeuie a zoU, it canofl 
set up disobedieiMe to the statute as aa aMiftrto tu 



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THE JURIST. 



87 



nL C^MnM, Bl— The Sad mcUmi, which enacto. 
tint M person ilull act m u attorney, nnlesB he ihall 
ftMKi* b(CB sdmittod inraUed, mnst have heen in- 
tfimiti to t^j odIj to the courts which had a roll.] 
AH the itatataa as to the neceanty of having a roll, the 
iintaddu^ was 4 Hen. 4, c 1^ bad heen preyiously 
i^iriri. ThtstaL33Heii.^e.7,>^iilatiDgthennni- 
bOTslMtUi^inNwfUk, Satfolk, and Norwich, is in 
i^iUe id renealed statntes to stat. « & 7 Viet, 
c 13-, )nt Oat had long been obaolete. 

latkibfloniij! Hilary Vacation, (Feb. 1), 
CvJHf nt heud in reply. Cter. ad9. wit. 

Pim, B.,iunr deUracd the jndnient of the Court. 
— Ikiioutwts aricved before iny Brothers Alderson, 
RWft, Pbtt, and Williams; my Brothers Coltman and 
SCnk hari pert of tbe argnmenL but give no opinion. 

A writ oi error has been brought on a judjjfment for 
ffceCnmoaadeiaiirTer to a return to a wnt of man- 
damf to jdoit WilUam Henry Ashnist, an attorney 
^ Ha* eMrt» Battaney of the Lord Mayoi'i Conrt, 
a tfce eitj of I^od. 

Ae awatiaB Mm in wai, whether, upon the ftcta 
ufaitfeV spoB the demanvr to the letnm, the appli- 
cHfc, Xr. Aabnat, was entitled to be admitted, by 
Tittaa «f tbe trth section of the 6 & 7 Vict. c. 73, an 
atfaraef of tkt Lord Mayor's Court, and whether tbe 
Brndaavs vu ii « correct form if he was so entitled. 
Tbe Cevt ban considered the very able arguments 
wftU were taged on both sides, and, I believe, ore not 
otirefy agreed in the view taken of the principal point 
■«^aib was under disensaion — that is, whether the Court 
tf Qaees's Bendi were right or not in the opinion they 
fined apea the eonstmcUon of this act. 

Bit Chcm m farther qncsUon arose, whether the man- 
tais m its picaeiit nwm is sastamable; ud we all 
i|M that His not. The objeettoa to it isi that it does 
Mt rtafee that tbe Lord's Mayor's Conrt is an inferior 
>^ef law, Int only an inferior conrt; and it is only to 
■briar eanta of Uw that attomies of the superior courts 
Asfmi^hled to be admitted. The mandamus does 
Mttbcwsay lAIigation to admit to this court. 

Saiebie^ion is fetal, unless the return, which ad- 
■ib it to be a court of law, cures the defect. On a 
fhi, n admisrion of that nature would hare that 
Act, tbe up fa the plea should be bad ; but it was ar- 
piM^ n a mandamus the judgment is, that the 
ntan be quadied ; and, if that be the case, it is tbe 
■as as if M letnm were made. The iudgmeut in this 
Ml 1^ bowwcr, net that the return is to be quashed, 
NUfcat it is invalid in law. Bat n peremptory man- 
wna is alw^ awarded, and that form being used, it 
■■t be the SBM as tbe one ori^nally awarded, other- 
^■ifce debnlsnt would have a right to make a new 
^ntatt. The peremptory mandamus would, there- 
M^^^at&e beeof it, be equally bad, and derives no 
ImaGt fnn tlw admisnon in the previous return. We 
tUat; tfacrefiir^ no peremptory mandamus ought to go 
■fee pouLut form ; and, consequently, the judgment of 
Of CMjt ef <ineen's Bench, awarding such mandamus, 
to be tcrersed. It is now perfectly settled law, 
flit, sAertbe retam to a mandamus, objections rosy be 
bhB to tbe form of the writ That was decided in the 
OK ef JBrs T. TUff MmrgaU Pier Qmnm. (3 B. & Aid. 
2a»laadiBAy.T.iW/j;(lQ- B. Rep. 352 ; 6 Jur. 
MX Ibe judgment, therefore, of tbe Conrt of Qveen'f 
MKi ■■st be nveised upon this gronnd. This was a { 
■tftsr wbidi doea not appear to have been considered 
jaAa Uann's Bench at alL— Jb^pmart rmenmi. 



BAIL COimT^lf KHAEUus Tebk. 

WimmoH V. WiLLATs.^ — Nov. 16. 
at m COM of NotumU—EnUufmg Smlo on 
«f Ahtmm^ mtn m N «m§ of W^ tm 



Tko AMfOMltt ea a RuU to ewfarys a por mf ^ ow y Umdof 
taimg, om tko Orommd of tko Aioatet of a matorial 
WitnotM, mood not ttato tko Namo o/tudk Witiuu, 

In Easter Term last, a rule nlu for judgment as in 
case of nonsuit was obtained by the deiendaQt, which 
was discharged, on a peremptory undertaking to try at 
the next assires for the countv of Berks, on an affidavit 
of the absence of a material witness. The plaintiff; 
however, made default ; and, on a former day in this 
term, obtained a role nisi to enlarge it. The present 
rule waa obtained upon an affidavit, which stated, ** that^ 
immediately aftw Uie 1st day of May last, the day on 
which the rule for jud^ent as in case of nonsuit waa 
discharged, he, the plamtit^ followed up the infonna* 
Uon he was in possession of, regarding toe residence of 
the material witness, on account of whose abseuce he 
could not proceed to trial at the time when the said 
rule wss made ; and that he was unable to obtain the 
address of such witness, or discover where he was to 
be found, although he had used eveiy exertion to do so, 
until after the time when it was too late to give notice 
of trial in this cause for tbe commission- day for Abing- 
don, where the said assizes were appointed to be held." 

Hodgaon shewed cause. — The rule must be discharged, 
on the facts now before the Court. The application is 
too late; the plaintiff ought to have eome in Trinity 
Term last, and not widte<rntttil the actual defeult tooK 
place. The rule was disehaiged on the 1st of May last^ 
and, therefore, the plaintiff mtd ample time so to do. 
[Pattaoitj J. — I do not see how he could take any step 
in Trinity Term.l The affidavit on which this applica- 
tion is founded isTosufficient: it merely states that " he 
was unable to discover the residence of the witness." 
This is precisely in the seme terms as that on which the 
former rule was discharged. [Putfetofi, J. — The affi- 
davit states he could not find the address of the witness 
until too late to give notice of trial. The question is, 
whether he was bound to give notice of trial on the 
chance of finding the witness ? I rather think it a rea- 
sonable thing he should delay giving noUce of trial.] 
There is no statement in tbe alndavft who the witness 
is, where he reddes, or whether bis evidence Is mate- 
rial or not : or whether, in the event of the trial bdng 
set down, he is likely to be forthcoming. In MoiU/ont 
V.Bond. (2 Dowl. F.C. 403), where an objection was 
taken that the name of the witness wss not mentioned 
in the affidavit upon the first defeult, Littledale, J., ' 
said, ** It is not neceesanr that tbe witness should be \ 
named in the case of the first defeult, but in that of the 
second it may be different." If the defendant were en- 
deavouring at Niri Prius to postpone the trial, on the 
ground of the absence of a witness, be would be bound 
to disclose the nsme of such witness. IPatteooiiy J. — I 
rather think we deal more tenderiy with phuntiffs than 
defendants. The question really is, whether, on a se- 
cond defeult, it is necessary to give the name of the 
witness? Is there an^ case <m it? Hy Brother Wll* 
Hams does not say ponUvely but that it may be given.] 
Bote V. Tke Port Talbot OBmpaigr (15 Law Joum., N. S., 
Q.B.,316)i8in point 

CAanioc*, in support of the rule.— It is not absolutely 
necessary that the name of the witness should be (riven; 
and, in thia particular case, it would be a great nard- 
ship, for the action is brought under the Game Act; 
ana, if the present rule is refused, tiie plaintiff will be 
precluded from bringing another. 

Pattbsoi*, J. — In tbe absenceof any expressdeddon, 
that, on tiie second defeult, the name of the witness 
shomd be stated, I do not see that it is more requisite 
to do so than on the first I think^ therefore, I ought 
not to exclude the plalntifffrom gomg down to trial at 
the next assizes. The rule must be absolute on pay- 
ment of costs.— Bab aitohtto tmordingfy. 



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Sd 



THE JURIST. 



COURT OF COHMON raRAS^MniH. Tbm. 
Ltmix V. Lajtoklls.— Aitr. 17* 

£iU 0/ Exchange — Dtscriptim — Ckruiim Nam»— 
Plaading—TitU— Pigment. 

Anun^tit m a BiU of Exchange Indorsee againtt 
Acceptor. Plea, that the IndorsemetU was in jSlani; 
that, at the Time the BiU became due, it uras in the 
Handt of 1. Sialespear WiUiamSy as the lawfitt 
Holder for Value, woo, while he teas the Holder, and 
in pursuance of an Agreement made with the Defend- 
ant, and after the But vxu due, and he/ore the Plain- 
tiff^s Possession, and before the Commencement of the 
t^it, accepted of the Defendant 10/. in Part Payment 
of the Bill, and a Promissory Note at 7%ree Months 
for «A« Bxsidm^ icAieA iViste rie D^ntdmA paid when 
due. Averme^y that the Drfeadant had no Knowledge 
cfthe first or Christian Name of the Party designated 
as I. Sha^pear WiUiams otherwise or to a greater 
Extent than as setfoiih ly tie said Initial Letter, Sfc. : 
-'H^dt on special Demurrer, fy^, that the Plea suf- 
fleiemfy disdosed VTilliam^s TUU to the BiU, and also 
a Payment to him in discharge of the Bill. 

Seeon^f that it tuffieientfy describ&i him as I, Shake^pear 

Aaaampsit on a bill of exchange drawn by one Hine, 
accepted by the defendant, and indorsed by Hine to the 
plaintiff. Third plea, that the indorsement by Hine 
was an indorsement in blank ; and that, at the time 
the bill became payable, and thence till the agreement 
thereinafter mentioned, the bill was in Uie hands of one 
I. Sbakespear Williuna, as the lawful holder and owner 
thoreof fin ndue, who was then entitled to receive the 
amount from the defiendant; and that, after the bill 
became dae> ai^ whilst the said I. Shakespear Williams 
was the lawful owner and holder thereof, it was agreed 
between the defendant and I. Shakespear Williams, as 
the holder of the said bill, that the defendant diould 
pay to I. Shakespear Williams part of the amount of 
the said bill, to wit, the sum of 10/.; and that the de- 
iendant should then make and deliver to the said 
I. Shakespear Williams, his, the defendant's, promis- 
sory note, payable to the order of the siud I. Sbakespear 
Williams, for the snm of 15/. 155., payable three months 
after date, on account of the said bill, and all interest, 
charge^ and daims whatsoever in respect of the said 
bill. The defendant then averred, that afterwards and 
whilst Williams was the lawful holder, and after the 
hill became due, and before the plaintiff became pos- 
seased of it, or had any right or title in respect of it, or 
any part of the amount thereof, in pursuance of the 
ureement, the defendant paid Williams the 10/., and 
duivered to him the promissory note for 16/. 15«., and 
pud it when it became due ; and that the said bill was 
overdue when the plaintiff first took and received the 
same, and before the plaintiff ever had any right in or 
to the bill, or any part of tlie amount thereof! Aver- 
ment, that the defendant hath not, nor has he had at 
any time, knowledge of the first or Christian name of 
the party hereinbefore dengnated as I. Shakespear 
WiUianu otherwise or to a greater extent than as set 
forth by the said imtial letter, nor hath the defendant 
becsi able to obtain any knowledge of the add first name 
oUierwise or to a neater extent than as aforesaid, al- 
thongh he has maioe doe and proper inquiry in that 
behau. Verification. Spedal demurrer, assigning for 
cause, that the plea was an atgumentative, or, at all 
events, an insuflicient plea of payment; that no sufficient 
excuse was stated for the omission of the first Christian 
name of the person designated as I. Shakespear Wil- 
liams; and that the title of I. Shakeqpeat Williams to 
the bill was not shewn with saffidesit owtdnty. Join- 
der in demurrer. 

Hawkins, (Barnard with him), in support of the 
demurrer. — first, the description of I. Shakespear 



Wmianw by the iaittai letter ''■I is insuficU 
(Stephen on Pleading, 338. 6tii ad.) And ualcea I 
ondanm be excused by vrMtnent, it is jmmnd *>S ap« 
demnner. {AfpOmme t. B/oadbs, UUee. & W. il 
The matter 01 accnse fai the pka is not teaveiMb 
bat, in that averment, I " is calM tha initial Ml 
which shews it is not the Christian name. ^MatiU^ 
— The def^daot uses the words sud ittibnl letta 
No initial letter has before been meDtioned, If y 
assume that he means " I," yen assume the poiirt 
dispute.] luNash v. Col^, ( 17 Law Joum., N. S., C. 1 
01), this Court held, that the initial letter W " m 
a defective atatewent of a name. And Lord DetniXM 
in delivering judgment in Leey v. and 
Held, (Ifi Law Jown., N. S., ft. B., 410), says, " 1 
must presume that every person has a Christian nauM 
If BO, it must, at lesst^ consist of two letters. [ Jfofl 
J.— No* neosssarily. A Christian name muat at let 
ocwsist of a word. Every vowel is a word ; but • 00 
sonant is not, for it cannot be prtmonneed withont tl 
aid of another tetter, a voweLJ Secondly, the pka 
defective in not Aewing that I. Shakespear Williat 
had a legal mterest in the hill at tiie time he held j 
Though Uie inderstmoit is stated to have been in blani 
the plea does not state that Uie drawer delivered tl 
bill to I. Shakespear WiUiams. [Jfoa/s, J.— The ps 
son who has a bill of exchange to cany or deliver ia n 
a Uwful bolder of it in the usual aco^tation of tl 
twm.] The objectira may be taken on special d 
murrer. IMaule, J.— The defendant is not stati^ b 
own title to the bill, but Ui« t^ of the plamii 
through a third party; and when he says this fcUr 
party was the lawful holder, he nuana after indom 
ment.] Thirdly, the receipt of the 10/. and of the p» 
miasory note for ISLlSt. did not disdiar^ or snq>ea 
the remedy of Williams w the hill : it is no defeao 
except as to 10/. Consistently with the plea, the pkui 
tiff might have become the lawAil holder for vahie hi 
fore the promissory note was doe. And, farther, tt ) 
not stated, that, at the time oi the payment of t^te tw( 
missory note, WiUiams was the hcdder of the biU < 
exdiange, and mtitled to reeeive the mone^ tiien da 
thereon. If this is a plea of paymoit, it is insuf&cinn 
as payment (on q>eoial demurrer) ought specifically t 
be alleged. lJUaule, J.— The aUegation is, th^ he he 
so paid as toprevent tiie payee fr<»n recovering npa 
the bilLI Then, what u to answer the damages 
IMaule, J.— The pramisswy note was given for an 
on aoconnt of the rendne <n the sidd bill, and the in 
terMt, chama, and claims in leaptct thereof," that it 
in reject <» the biU.J 

Conie, in support of the plea, was desired to eenfin 
his argument to the quesUon of misnomer. — Even sm 
posing " I" to be the initial letter, tiw excuse is snil 
cient if the Christian name he not within the knewledg 
of the party pleadmg. An all^tion to that effao 
should be BUtde, and such allegalion wUl excoas th> 
omission of the name." (Ste^iien on Pleading, 339) 
And for this is cited Bowe r. Roach (1 M. & & 304 
and BuciUy v. Rice, (Plowd. 128 a). The latter eas 
gives the principle, That the kw wiU not foxes a sm 
to shew that which he cannot." If the words "sai' 
initial Isttsr" nfor to the letter « I,"~if 
whole of the Christian nam^— it is the final Mtcra 
well as the initial. 

Hawiine, in TCf^- 

C(H.nujf, J.»We are not willhig to give w^ to th 
objection rttaed hy this demurrer; and in a natte 
not touching tlie merits of the case, the Court have, 01 
former occasions, r^rted to a subtlety to do justice 
Here the letter ** I " may possibly be a Christian name 

Maulb, J.^ think the letter I " in this plei 
mast be taken to he the (^uistiw name. It is M 
neosssarily the initial ktte»-it mmy eomtitnlt tki 
whole name. ! . 



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THE JJTRIBT. 



n i l htdgmmt /tr tJk» tb^md- 



AFPK AL TO COURT OF COHHON PLEAS 
HKDER REGISTRATION OF TOTERS ACT. 

#DUm, Appellmt, nd Rics, Respondent.— iVov. 13, 
% ira. 4. c 45. s^SI^Seform Art-^jnaHJiaatim Out 

A ^jmK a mi oetwfiad a SlaiU and m Ooaek-iiouat, 
I ■l O' BWi J MM mmetimr, md were under tke nme 




^■ImI « Ptram temld pass fnm out to tie other. 
A* iW EM» Ceat^-iome new mitr a wmvd 
g^w ii, imdmf fnm Oe Sinet mto a Yatiy in 

■W Tmd wag iu dmr. Nemm the StaUe 

M» ML a« aw ftyitjkr m.— AU; 

tfa AffJwrt WW iiifctfini »a> tyfaftMrfw 

Ohc — At < tsraX held before the Barrieter appointed 
to TTTw (2w fiiti of Toten for the boivufHi of Newport, 
tie rtriaoo of the list of Toten for the parish of 
rt, Hefi^ Rice objected to the name of Joseph 
buB^ Rtnoed on the wne list. The name of 
••Mid Joanfa at«)d thai on the list:— ''Jo- 

Joliffe^&wGombe, coach-bonae and staUe, Holy- 
foJ at rtet." And the groond of objection was, that a 
^taftl^ «f which the sud Joseph Jolifl^ was the occn- 
ce«U Dot be jmned with a coach-house, of which 
» »y klio Ae oeeo^, so as to make one entire 
^ttkatioD, within the meaning of the stat. 2 Will. 4, 
^ffk^^; nalher the eoadi-hoiiM without the stably 
fte rtaU* wi^ont the coach-honse, being of the 
mmrjeuij -nJoe of IW., but the said baildings toge- 
■yfa y of that TBlne. In other respects the qiumfi- 
tfifaB of tb« said Joseph JolifiFe was animpeaehed. 
vMbvildiiigs in question adjoin one another, and are 
■■fc* tke tune root, the stable standing at the back of 
'ivac^-bome, and then being two grated windows 
\ fam one into the other, ont no internal com- 
brwhich a person, could pass from one to 
r. The door cX the coach-honse is nnder a 
gsArw^, leading from the street into a yard, 
yard, with the premises in question, formerly 
bA to sa adjoiaing inn. The door of the stabfe 
> ymi, mA nnsd the eomer of the gateway, 
irnrii Astaat from the antcanee to the eoaeh- 
AeR art wooden gates at the entraoice of the 
way from the street, which when closed wonid 
b both the coach-honse and stable in question. 
|Btn and the said gateway and yard are used in 
M by the Slid Joseph Jcdlflb and the occupiers 
ee dcKnrent sets of premises, let separately, and 
re^tectirdy nnder the gateway and within the 
Ib order to pass from the coach-house to the 
ar from the stable to the coach-house, a person 
c vot into tb* said cMnmoa gateway ana yard, 
along them respectively from the door of one 
to the doorof the other. A large room, which 
the galewij, oTor both the coach-house and 
I ^astiiH^ Mid alio oTeraoother coach-house at 
fti ifpB oit i aids the P^/^y* and to which room 
AasBtnc* is tnm tike ffreet, is occupied by a dlfl^ 
fc — t. and separately rated. A plan of the pre- 
■iMiasimexfd, and is to be considered ss part ofthe 
■IS. The dwdfi^-hovse of the ssid Joseph JoUffe is 




sad 



WUmt CJ., MssbaMllmillasiB. 



b s t w iian two sad three milss distant from the baildiiws 
in QMstion. The lavisiDg bacristar held, that t&a 
bail^i^ so situato co«ld not be joined so as to oonstt- 
tmte one entire qnalificatioa ; and the name of the said 
Joseph Joliffs was aeoordingly exponwed. If the Court 
dionld b« of oninion that the said decUon is erroneous, 
the Buos of the said Joseph JeUife is to be Nstorsd to 
the said Uit of Toten for the sud borough of Newport. 



C— isssM yswL 



PmOdeity for the appellant— The qnsstion is, whether 
these straotorss eonstitute a buildins within the meas- 
ing of th« 2 Will. 4, c. 45, s. 27. It Is not necessary 
tMt there rtionld be ''an internal communication, by 
which a person could pass from one to the other.** The 
sort of eommutticaiion requinto for the occupation of 
the two portions aa mu> btiildtng must depend on the 
natne m the haildbw; aad bete tha ease states amply 
saAdent to shew that the coaeh-bouse and stable 
formed bat one. They a^rfned one another, were 
under die saino roof, with grated wfridows lookii^ ftvm 
one into the other. The decirions, as to what consti* 
tutes a dwelling-house in cases of burgla^, are ap{di- 
caUe to the present question. In Hawkins* Pleas of tbe 
Crown, book l,c. 17, S.20, it is sud, ** Burglary may- 
be committed in a shop adjoining to a house, If nndier 
the same roof, or within the curtilage, although there 
bs no internal communication between the shop and the 
house^ and although no person deep in Uie shop." To 
a similar effect is the decision In Brmon't ease, (East's 
P. C. 501); Rem v. John Burrowes, (1 Mood. C. C. 
274). In Rex r. Jamee Weetwoed, (R. & R. C.C. 
495), the reason given forthe judges noteonsiderii^ the 
room in question parcel of the dwelling-bouse was he- 
oauss ** it did not adjoin it, was not under the same 
roof, and had no eraimon fonee." The question of Im* 
temal eommunioatton, or not, was immaterial. The 
same was held in Rea v. CkaOtina (R. ft R. C. C. 384) 
and Rex T. Lithao ( Id. M7). 




house to buildings lying within the curtilage. (] Rnss. 
on Crimes, 799). fiut heretiiereis nodwelftng-bouse in 
connexioD with which the coach-houss and stable are 
occupied; so that the principle of protection, on which the 
eases cited have been decided, is not applicable. The 
question, whether these oonsCitate one building or net 
is one of foet; if so, the iSTidng barrister lias decided 
it, for ha calls them imUdrngt, in the plural. Either 
Ae oeoch-hoins mr tbe stable, if occupied separately, 
and of the value of 102., would oonfor a vote as a dis- 
tiMt bailding. In Wri^ t. The Teem-elerk of Stetih 
pertf (5 H«B. & Gr. 98), rooms in a factory were let to 
ceMotv-minere separately, tbe renfoTMying according 
to tbe Aae ef the non. Tbe appceaeh to tbe loona 



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THE JUBIST. 



wu either by a eomnion staircase leading from the en* 
trance to the factory, (to which there waa a door which 
was nerer fwtened), or by separate ontude staircases, or 
hy doors opening into the yara. Each tenant had his 
own ^inung-machiiw, and also the excluriTe use of his 
TDom, and ttw key to the door thereof. The Conrt 
held, that the oecnpler of each room was Uie exelnsive 
occupier of a bwlding, within the Refonn Act. So, in 
Wkitmon V. Bed/b^f (Id. 9), a cow-honse or stable 
was held to be a bnilding within the same section. 
Ttien, applying the principle laid down in Dadkunt t. 
reildtn, (7 Man. & Gr.l83\ that two distinct build- 
iogs cannot be joined together in order to constitute a 
right to be roistered as a borough roter under this sec- 
tion, it is clear that the decision of the revising barris- 
ter was right. [JfnuZe, J. — In the case of Wright r. 
The TowR-derk ofStockporty if one person had occupied 
the whole of the rooms in the factory, he would have 
had a Tote.3 In the law of settlement it has been held, 
that a pauper m ight gain a settlement, under the Geo. 
^ c. 67, by renting two or more deKriptions of tene- 
ment, the rent of each being under 10^ but ^ rent 
the two together amounting to that sum, as wdl 
as by renting one distinct and separate tenement of 
theraloeof IW.; {Reg.y, fFwrfon, 1 Adol.& EU.232); 
but the law relating to that subject is not applicable to 
a case under the Reform Act any more than the law re- 
lating to burglary. [^Maule^ J.— If it is necessary, in 
order to constitute these one building, that there should 
be a door between the two, then, in prisons and con- 
Tents, where frequently the only communication be- 
tween two portions of the building is by a grating, the 
pwtions on the one ude of the grating and on the other 
are to be considered as distinct and separate buildings.] 
"WiiOB, G. J.— It seems to me, that there is no great 
diificulty in this ease. These places originaUy, it ap- 
pean^ fbrmed one building ; «»ey ate in a court-yard, 
and adjoining one another^ and there la a room over, 
common to both, but which Is now separately occu- 
pied. The circumstance that it is necessary, in order to 
pass from the stable to the coach-house, or from the 
coach-house to the stable, to come out into the yard, is 
no more than happens in the case of almost every gen- 
tleman's coach-house and stable, for it is seldom that 
there is more communication between the two than by 
a window, which is sometimes found, for the purpose of 
giving light. It seems to me, that the circumstances 
stated in tiiis cass shew that this coach-house and 
stable eonsUtute Mie building in point of fact, and I 
think also in point of law. The learued counsel, who 
argued for the re^ndent, very properly observed, that 
Uie revising barrister has called them two buildings, but 
it seems to me, that he has stated facts which prove 
them to be but one; the reason for his so calling them 
is, that there is no door between. The Court have, on 
former occasions, denied the strict application of the rules 
relating to cases of burglarjr and settlement: which 
cases, though useful in throwing light upon such as the 
present, are not strictly analogous. The objects of the 
law on those subjects we« very different from the 
objects contemphtted by the present statute; so 
that many observations which apply to cases arising 
vnder the one may be Inapplicable to those arising 
under the other. The only question here is, do the 
coach-honso ud rtaUe consmate one bnil^wl By 
what test should it be decided 7 Is it by the simple 
test, whether there Is a door between I If that be net 
the test, it is difficult to see how any donbt can arise in 
this case. It appears to me that that is not the true test ; 
but that the facts of tha« being a common roof, and a 
common chamber, and an internal communication by a 
windo1t^ shew that these premises form but one buOd- 
ing, and that is all that u necessary to crafer a vote. 
The nvising barrister has drawn a conclurion, that, 
within the meaning of this net of Farliament, they limn 



two. This, I think, is an erroneous condudim, and th 
appellant is entitled to be registered as a voter in rc 
apect of his occupation of this building. 

CoLTHiN, J.— I am of the same opinion. The sal 
stance of Mr. Creasy's argument is, that, as the stab! 
may be occupied by one person, and the ooaeh-hotu 
by another, and as aUier, if of suffidont value, wonl 
confer a vote, the two caniiot be coupled so as to confe 
that right. It seems to me, that tbe cases he has cite 
shew just the reverse. In the case of the foctory, wbicl 
was let out to difierent tenants, each tenant was held t 
be the occupier of a building so as to have the right i 
vote; but it is impoerible to contend, that a tenant oc 
cupytng the whole would not have been entitled t 
a vote. The test he submits to us is not the on 
spplicable to this case. The cases as to burelar 
are not strictly analcwous, for refinements have 
introduced in some of those cases which should not 1» 
applied hen; undoubtedly they are applicable as i^r a 
they go, for buildings nnder the same roof havo beei 
held to be one, even when the principle of in favono 
vitc has applied, and themaum of the law, that we ar 
to fiiTOur the puty who is Iwougbt in peril. Bat, h 
spite of that, we hold buildings under the same roof t< 
M part of the dweUlng-house. 

Haulb, J.— -I have sufficiently intimated my ogdnioi 
in the course of the aignmoit. 

WiLUAMs, J., coneiured.— jDscifjcii wttenei, 

COURT OF EXCHEQUER.— HfURTTnv. 
Smith v. RoBBBn.-Vaji. 13. 

Omm^ if 10 Vict. e. 95— ja^pyeM^on— J^w^ 

meat Default, 
An AppHet^M for a Suggeetim to <2^pn'w a PUdmti^ 

of OaU mder Me 9 ^ 10 Fid, e. 96, 1. 129, comk 

M made tmfAotd a prmhut Applieaaem to tit atid 

Jw^fment if timed* 
Qwrrv, whether that SeeUoH appUet to the Cue ^Judjf 

metU hy Default? 

This was a role to enter a soggesUon to deprive th 

?laintiff of costs under the 129th section of the Count 
Courts Act, 9 & 10 Viet. c. 96, on the ground that li 
ought not to have sued the defendant in a superio 
court. It was an action of trespass for assault and bal 
tery, in which the defendant suffered judgment by df 
&ult, and a writ of inquiry was executed before a 
under-sheriff, when the damaees were assessed at 1#. 
the underniheriff certifying under the 3 & 4 Viet, c 
that the treq»ass was wilful and malicious. The plun 
tiflT's costs were taxed accordingly, judgment signed an 
execution lamed in vacation ; whereupon a judge'sorde 
was obtained to bring the proceeds of the execatioi 
into court and stay the proc«%dings until term. 

Bovill shewed cause, and argued that an applieatioi 
for a suggestion to deprive of costs under the 9 & 1) 
Vict. c. 96, cannot tie entertained while the judgmen 
stands and consequently that the defendant ough 
first to have moved to set aside the judgment whicl 
had been signed. He relied on Soamee v. Coopet 
(18 Law Joum., N. S., Exch., S8}, as an authority i 
point, and also referred to Godson v. Zlcydf (4 Dow] 
167). [Parte. B., moiUoned Peterson v. Dair, (I 
Jur. 662).] 

HawktnSy contra.--Tbe judgment being r^nlar i 
itself there is nothiiw to impeach it until uie sug 
gestion Is placed on the record, and if that sn^eaUoi 
remains untraversed the entry of the judgment nuy b 
amended in accordance with it. If it were necessary t 
set adds the judgment before entering the suggestio: 
this inconvenience would follow, that the ni^eatto 
might be traversed and found by the jury to be untnii 
and yet on its assumed truth a regular judgment wool 
have been aH aside. Bottd r. Saik^, (3 I)*wL 80e; 



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THE JURIST. 



41 



^aaded wkr the Londoa Conrt of RMoetto Aet, tiw 
90 & 40 Geo. a; c lOi, it in p<^t; white in Sotmui r. 
Ck ^m- c^ed hj Uw oUmt side th« point wu not fbllj 
mgmi, [i>«^B.— In .S^T.AN^gr the only point 
to that tba ^^leatiMi Ibr the (oggcauon ww 
Mttee Irie the tem feUowin; the triel; ud there 
weaM >e * greet ftilare rf j— tiee If it were, m the ap- 
ffientia ceold mot be mda before. But the only 
Meal>Bn bece m on the tarn of the ^tliofttion, name- 
wfaeAer jea mnet net jCril more to eet eaide the 
jMilgniiiit. aii execnti<Mi, ea the luggcetion would Iw 
aatmrnt ae a record etmtaining an entnr of jodgment 
mi cast* taxed for the other nde.;^ In jBatkUltm r. 
OUatr (1 DowL £98) the preaent objection wai taken 
with KTcnl otbet^ and decided in onr furonr. In 
3ntt T. 7t^ (10 Jut. 967) also, where a rok was ob- 
taioed iw a new trial in a cease tried before a iberiff 
Mmk «a wiiA Jndginent had been ugned ; Fatteeon, J., 
m the fisa Cooit Uld it unneoesMiy that the rule 
iheaU Hake an- r ri erence to the jndgmoit. 

FouBcx, — ^Thie nle mnet be diadiaiied. It 
deea net £itiaetlj anpear firom Badd^ t. Omar that 
ftc rale there inigit not have been to set adde the 
Mpmt aad cater a avggeaUon to deprive of coets. 
B«i eeifnaia^ H not eo, and that that caee is an au- 
theei^ in pant for the defendanL Sookum t. Cooper 
ia dmcttf the sOa way, and is a Uter dedsiou, come 
te byeanafra^irtueh we are not disposed to OTermle. 

Puc^ B.— It is a Tcry old rule of practice, that 
who* aficT 6nal judgment has been stgnea you seek to 
set aside a pim rtep for im^vlarity, you mnst men to 
ast aade the jedgment. 
Auasos end Fun, BB., oonenmd. 
Bmatmo thn asked that the rule m^it not be dis- 
tftsrged with costs; the dedrion of the Uonit pmeeed- 
^ e* Amms t. CM|»er, whieh was not rented at tiw 
fiM when it was moTcd. 

AmanaoK, B. — ^Thcre is another point in this case 
whaA it will be neccsssry to disciue some day, namely, 
whilliii the 129th section of the 9 & 10 Vict. e.9fi,ap- 
ffiea ■& to the case of a judgment by default. That 
■sefioi deariy contemplates a case where then is a 
vwdSet other §ok a plaintiff or defendant on which the 
Mee eesld grnnt a certificate. 

Piuati; Bh^It is a great question whether you oould 
bare your costs at all as coming within the Coanty 
CmIsAcC The pneent rule ought therefore to be dis- 
I h Hil l I, with eoets.— .fiwfe ditekargoi, with eoott*. 



CBOWN CASES RESERVED. 

SZCHSQUER CHAMBKR. 

CB^nFeuecK, C. Parkb, B., Pattbsok, Ckem- 
WKU, and Williams, JJ.3 
Rbg. v. Strak. — Dec. 9. 
Imtmof — BaSmait — TVomt — Pradioe. 
Cmmftr flW CW i iifar s tfw i ^ 0* Jmtffet, wider 11 tf 12 
Fia. e-Ti, mn m4 to & UnMllir iVbmsfnMt of the 
fimte. 

&f Srnhe ^ P.'e Mare, loot her to eertam Liverv- 
i f e H a r , «mI paid P. a B^nee duo to Aim» <^ier eU- 
Aetiaf Mom^ dm /brOoJCt^qftko Mare, mtd told 
P.tftf jfteaw « rteZswTMAiNH. P.tent fFord 
mOm ateHo-io^nattoUtS,lMm tie Mare offoitt, 
amdtmieer^modS^PerwuMeionloriAtkoMaro. 
^ter P. hmd tke Town, obtained the Mare from 
me OaAr at the Lieerf-etaiUe bjf a faUe StatomaU, 
amd meatr rotamed her:— Held, that S. toot rightly 
eoaoicted of I^a^oeajf. 

Jokn Diatin Stear wss tried at the last Michaelmas 



• Ob Oii latter point set Cfan^T.^MM (4 OowL-M3). 
Jmm «. Bnst (2 Uee. * W. 313), end /i^Wm t. Beari (12 



Quarter 8 serious for the boroi^ of Plymouth, ber<«e 
W. C. Rowc, Eeq., Recorder, on an indictment otwrging 
him with stealing a mare, the property of James 
Pugdey, and was ij the juiy found guilty. The judg- 
ment wss req>ited, subject to the following ease : — ^It 
^peered in endenee, that the proeecutor, James Pngt- 
ley, while liWng in Jers^, had, in March, 1848, ddi- 
rued a hone aoA the mare in queatkm to the keeping 
of the prisoner, who was a fivmor and horse-dealer 
Hiring at Loddiswell, dxteen miles ftom Plymouth, 
with orders to do his best to sell them. Aooordinriy, 
in liey, 1848, the prisoner sold the htose. On the STtli 
Jane, 1848, the proeecntor (who was himself examined 
as a witness) went to LoddiswcU with lUchard Gee, 
(who was also examined ss a witness), and stated to the 
prisoner that he came for the express purpoee of taking 
the mare away, and that he wanted bis bill. The 
prisoner answered, that he had no bill to give him; 
that all wss paid with the money he, the prisoner, had 
reoeived from the prosecutor, wd out 01 the money 
that he, the prisoner, had got from the sale of the horse: 
that he had sold the horse for ssrenteen eorereigns, and 
that, after all was p^d, he had fourteen soTerrigns to 
hand over to the prosecutor. He added, that the mare 
had reoeired temporary injniy from a foil ; and it w- 
pearing, on examioation, that such wss the ease, the 
proseentor consented that she should remain with the 

Srisoner a fow days longer. The next day (the 28th 
une) the prosecutor, in consequence of some informa- 
tion received in the interval, went agun with his 
brother-in-law, Thomas Stear, (who wee also examined 
as a vritness), to the house of the prisoner, who was at 
that time absent; wfaereupontheproeecutor left Thomas 
Stear there, with orders, on the return of the prisoner, 
to demand the man uid the money. Upon the pri- 
scwer's retom, on the 29th. Thomas Stear made ^e 
demand accordingly, when the prisoner refused to give 
up the mare or money to him, but said that he would 
go and see the prosecutor himself at Plymouth ; and, 
therefore, the prisoner rode the mare, and Thomas 
Stear rode in company with htm to Plymouth the same 
day. At Plymouth, the prisoner, in Thomaa Stear*s 
presence, placed the mare at Port's livery-stables, and 
they both then went to seek the prosecutor. On find- 
ing him, Thomas Stear stated, in the prisoner's pre- 
sence, that he, the prisoner, had stated that he would 
not deliver to him the man or the money, but that be 
would go hims^ to nymouth. The proseentor, upon 
this, told the prisoner uiat he need not have done so, 
as he, the proeeentor, had given frill power in the matter 
to Thomas Stear the day befon. Thomas Stear then 
said, " The mare U at Port's." After this they dined 
tcvether, and then the prisoner paid the proeecntor 
13f., saying, that he kept back If. tor vetehee had since 
the mare's illness, and that this was all that was due. 
The prosecutor then told Thomas Stear to take the 
mare, and ride her to Mr. Eliot's, at Babland, who was 
going to keep and ereotually boy her. Upon this the 
prisoner said, Why not let me take the mare back to 
Eliot's myself 2 It^s all in my way." To which the 
proeecntor answered, " I dare you ever to pot a finger 
near that more agam. Thomas shall ride her to Mr. 
EUiot'a, and you nmy ride Thomas's horse home, if you 
please." The prisoner then left. Just after this the 
prosecutor sent faJs nephew, Greoroe, with orden, ac- 
cording to whieh George went to the stable at Port's, 
when the mare was, and ordered the oetler not to let 
the prisoner have Uie mare, as it was bis uncle's. The 
prosecutor, in the meantime, set out to go on board the 
steamer for Jersey. On his wav to the qaay the prisoner 
found him, and again twice asKed to be allowed to take 
the mare to Mr. Eliot's himself; and was again twice 
ordered by the prosecutor, in the preseDce of Thomas 
Stear, who accMnpuied them, never to put fiiwer near 
the mate more; to vhidi he answered, >* Wolf?' Tho- 



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THE JURIST. 



prisMOT then sald^ I am diort to wMoh die prom- 
CDtor answered, ** I won't see you short for a crown 
piece to go home with^" and gave him 6f . The prisoner 
then left. Thomas Stear wmt on with the proseeator, 
and Baw him on boud the staanm for Jersey. la the 
meanwhile, the piiaooer, on leaving the proBeciitor, met 
a man called Elnuley, who had been In company with 
the prinna ud proaeoutor in the course of the after- 
noen. On so meeting Elmaley* be told him that the 
nrosecator and himself had made it all right* and that 
the prosecntor had given him 5s. Elmdey, who wm 
examined as a witness at the trial, then went with the 
prisoner, about five o'clock a.m., to Port's staUes. The 
ostler then told the prisoner, that a boy had l>een there 
to say, that he, the ostler, was not to ^ve up the mare 
to him, the prisoner, for she was his uncle's. To this 
the prisoner answerM, " I have just left the party, it's 
all r^ht now," and ordered out the mare, upon which 
the ostler brought out the mare and gave her to the pri- 
soner. The prisoner ttien paid far the mara*! baiL^and 
said, " If any me comes to inquire for me, say I am 

ra into the country a mile to see a pony, and diall 
back in an hour." Elmslev Uien said, " If I am to 
go to the town's end, I will ride the mare.*' The pri- 
soner then handed the mare to Elmdejr, w^o mounted 
and rode her through the streets, the prisoner following 
dose by her side. When they arrived at Ute ICadbutr 
Inn, on the ontskirts of the town, Elmsley difonounted, 
and they stopped and drank. The prisoner then said, 
**1 un off home," got np, and rode the mate away. The 
prisoner never returned to Port's, and neither the ostler 
nor Elmsley saw him unun until he was in custody. 
On his road home to LoddiswvU, on bis being asked by 
Bubard Qte afinvMid, whom he aoeidentelly met, 
" How's tills, that you hare got the maze beokr* the 

Srisoner answored, ** I have seen Mr. Pugsley, and set- 
led to take her back ag^,** Thomas Stear, after seeing 
the prosecntor on board the steamer for Jersey, went to 
Port's, and found the man gone. On fnrttier inquiry, 
he subsequently, on the 7th of July, went to t^e pri- 
soner's house, and demanded the mare, when the pri- 
soner owned that he had sold her; upon which a war- 
rant was applied for, and the prisoner apprehended. It 
appeared further In evidence, that the prisoner's brother 
William had sold the mare as early as the 3rd of SvXy 
to a Mr. Biekford, with the prisoner's assent, the pri- 
soner statiQg to Mr. Biekford that he himself had pre- 
vionslj sold the mare to his said brother. During the 
whole of these proceedings, as it appeared in e^denoe, 
the prisoner never set up any claim of Hen for the keep 
or naintenanee of the mare, neither did he ever allege 
Oat he had any pecuniary demand of any sort agunst 
the prosecntor until he appeared in custody before the 
magistrates. At the trial, no evidence was prodnoed on 
the part of the prisoner of any such debt or demand. 
At the close of the case for the proeeeution, it was con- 
tended for the prisoner, on the authority of R. v. SmUh^ 

il Moo. C. a 473), and R. v. Bank$^ (Russ. & By. 
41), that there was no case of felony to go Uie jury. 
I, however, was of osinion that the present case was 
distii^ishabla ftom the oases dted; and tiiat alUwrni^ 
there was cleariy no fUonioos intention on the part ^ 
tiie prisoner at the time when he first got possesmon of 
the mare, by virtue of the original bailment in March, 
still, as that bailment was determined before the pri- 
soner took Uie mare awa^ from Port's, that it was for 
the ;ury to sa^, regard bang bad to all ^e dirumstances 
of the case, with what intention the prisoner so took the 
mare away on the 29th of June. The jury having 
found the prisoner guilty, the judgment was respite^ 
the prisoner Iwing in tlie meantime liberatad on zecog^ 
nisancee. The (pinion of the judra, therefore, is now 
KspeotfuDy rsqnestad as to wheum the prisoner was 
z^ktly convieted. 



PouooK, C. B.— It is not Moeemy to give 80 leng 
a nanrativa in stating the points for the consideratiei 
t^is Court; it resembles a special case at Nia Pr 
where the Court act as jury ; and we hope the prad 
will be disoontinned. 

Qramuood^thB ooiiTictioii is bod. The poaseat 
was still in tiie prisoner whm he took Uie mare W 
and had not then been ehang^ed. tPotfoot, C 
you can shew that he continued in possession from 
original trwsaction till the time when the man i 
sold, it is not folony ; it resolves itself into a mere n 
ter of foet. There is no occasion to cite authorit 
WiBiam, J. — Woold trespass de bonis asportatis, 
trover, be the proper form of action in sncn a can 
The question is, as to whether a disregarded meas. 
might be said to amount to a change of posseaal 
There is no felony apparmt on the mota. The east 
not one of bare custody, but of Iwal possesion, b] 
horse-dealer, in the way of his trade. ^/'ottMt, C. 
— ^That is purely a questioa for the jury. Suppose i 
ease <^ a man who has pledged property with a nil 
broker, and afterwards redeems it, and the pawnwoli 
then i^cIes his pocket of it. I cannot distingnidi 
f^om any ease of stealii^;, yrbtm the property was oa 
in the possession of the person stealing.] Theie w 
here no change of posseerion except from wliat was sa 
by tile little boy. [CVwweW, J. — He l»d authority 
say what he did say ; his size does not aflfect the que 
tion.3 The foots do not shew a «hange of poesesRoi 
no such change was acquiesced in by the prismer, a 
though he persists in nis right by a false atatemeal 
Thu seems to be more like a question of trover ttsi 
felony. The taldng may lum bera perrene, or, to tb 
extent of deriring to obwn a eommlMOfL for scimnKtti 
mare, vvea duhoneat, but it was not felonious. (S. i 
Am&, Rtt8s.&Ry.441; B. r, €hoitocfy, 8 C.&I 
666; R. V. ffarw^, 9 C. & P. S03 ; 1 Moo. C. C. 703; 

Pollock, C. B. — No other question can t>e gsthere 
from the case tiian the question, whether there was sa; 
evidence &om which a jury could infer a cban^t 
possession. There was such evidence by which a joi) 
eonld convict of felony • and I tUnk tfaat Ihe ooneluwd 
the jury came to was right. 

Parke, B. — In this case, the mare does not remsil 
in the actual posseesion oi the prosecutor, but of tiiat a 
the third person ; and the question is, whether th«e il 
any evidence to shew that Port held for the proseenta 
or for the prisoner, I think there is eridence in uH 
case, from which thejury, if they liked, might xn£)i 
that the mare was at Port s, by consent of both parties, 
for the use of the prosecutor. 

Pattbson, J.— Tlw whole qoestiou is, whether Pwt 
had become the sgent of the prosecutor. There can M 
no doubt that there was sufBeteot evidence of that _ 

Cbbsswell and Wiluaiis, JJ^ ooncuzred.— CbMi> 
turn eot^rmed. 

Rao. 9, Webb. 

NwimiM^-Opm and notoriotu Lewdneu—Indeemt ^ 
pomr0—Fractiee> 

A. mu indicted for a Nuisance at Oommon Late, is w- 
deceatfy exposing his Person in tie Presence ofB^ o 
Marrted Womanf " and of divers other of the iiV 
Subjeetsof our Lady tM* Quern." The Evidenes mt, 
that no other Person butS. was present at the TSaw-*— 
Held, that those Words are material^ as E^osmja 
One Person onfy is not at Common Law an tnHOM^ 
Offence, and that the Conmakn eonid net be mm- 
tained. 

This Court, under 11 ^ 12 Vict, e. 78, w bound too- 
amine the Validi^ <^m AdicAmii; lAMtfi m 
be reserved ^xm it. 

The prisaasr WM tried at the Middhwx SsHfoa^Jj^ 
foze Hr. Seijeant Adams, assistant judgoy for itMNOTT 



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THX JT7BI8T. 



a 



UapcHUL The iadietaMit^naaBfoUows^^ 
I jcrm fcr oar kdj tlie Qv«an, i^ton their oatli, 
■I M l I. that Jam Wabb, kta of the parbh of St. 
MBguvt, Weatminater, in the comity of Middleaex, 
Isboarer, en the Sod of Oetober, in th« twalfth 
year of the reign of our aorer^;ii lady Victoria, b^ the 
guee of God of the United Ktngdoni of Great Bntun 
waA It^mi Qtantm, dafcndar of the WO, with foice 
anA maa, ai Aa psriah afem^d, in the ooonty afore- 
MftA, IB a certain jniblie place, within a certain rictual- 
lism afe-haoe then Mtnate, nnlawfiillr, wilfuUy, pnb- 
Bc^, and iadeantly did enoee and exhibit his priTBte 
Mrf^ Baked and nneorered, in the pneenee oi Mary 
the wife ef Edward Cheirill, and of diren other 
•r me he^ aot^ectB of onr lady the Qneen tb«i and 
ten bcifl^, far dieipaeeof diren, to wit, ten minateL 
to tbe great dsmaee and common musanee of the said 
l^mj Abb CheniU, and the said other lieve eabjecte of 
mm wmi lady tbe Queen then and there being, to the 
gnat cauei^fuieut indecency and immorality, and 
^riaaC the peaee of ovr laid lady the Queen, her crown 
— Ontfcetrial,it«ai provadby tbepio- 
lten.Uwt Ae w» takiiV «H» of a paUie-botts^ 
bthiad the bar, throvgh which was the 
jBtem die entBanoe dow of the pablte- 
itoOAlviaiio&T; that he conducted himaelf in 
■BMT, bat not amounting to aa indeeent 
' wliibt eo doing sereal persons passed to 
I Av; tbmt he thsn took oat and csqtesed his prirate 
tola her, and thereupon she directly ran off and 
~ tt hoabaad ; that there was no one in sight but 
'at the Hmt wha rile saw his priTate ffiU ex- 
Tw* Minis WKe made: first, that an indec«it 
ne the bar of a pabUo-hoose is not aa indict- 
Aaee; sssHiAjr, ■sniaing tlw idaee snfieient, 
HtiBt W meiv tain mm presant at the time of the 
Oe offaoB ii nafc eonplet*. The iary, 
rihe finetioB of lbs leaned seijeant, foond the 
' ga3l7, iobject to the opinion of tfaie jn^ai on 




, far tbe priaoner^The indietment is bad, 
mwat ih ■ in^ that tbe dKnee was committed wi^in 
vtd mm Slcj bat **in the presenoe of &c^ in 
sm canon'' &c [Pofibafc, G. B^That is not 
Kritisai befiwe as.] It is submitted, that the whole 
liaMbretbeComrt. rPottKa^ C. B.— Yen mav 
writ of errOT.3 To constitute expeenie, ft 
' ' nesaai^ that it dumld be in an open ud 
.orpiUibely, ortothepei^le. Tbeoffence 
K at Bommon hnr. It is no offinsa to ex- 
(*« prirate parts to a woBun, vokss sodi ex- 
^ be eenmitted with the o x p rew intent to inaalt 
r ; aad sudi dhnce is pnaUludile by the Vagvmt Act*, 
teis a aalike to prefer an indicbnent in thia case as 
feransHBe^ftr at the time of exposure no person 
wpmeat (1 Hawk. P. C, e. fi, ss. 4, 5; 1 East, 
a»wsl«w,8; R. T. CViia JflH^ 2 Camp. 89; R.r.Sir 
OMs&dSy,! Sd. 1«8; 10St.TT» App.,93; Chitty's 
Bm>s JMtwe, Lewdnev"). {.BarU. B.— I tried a 
aaa at York, in 1830, wh«e a Frmenman was in- 
Acted for expoan^ ha person at a window on the 
MOBd fleor in a benae in Iticklegate, for the pnrpose 
s( MfeactfBR the notke of a fenttie ssrraDt opposite. 
IlaftittoflM joy to say wfaeChsr ha Du^t not hare 
haaa a— ly ^mmm paaiar along the ebeeta. They 
feasd that he nrii^ bive bmo so seen; I, therefore, 
dhsated them to find a resdiet of guilty; and I passed 
BBtsBce on ^ prisoasr. I have not a note of tbie ease 
wi^Be; bat I shoold net have thus left the case to 
jaty, had 'A been iaarposrible for any other but the 
wnaa to have seen PsBoek, C. B.— Thete is 



*B75Geo.<,e.B3,t.4, 
M MBit • feMle. is in 
a»M.Mrbe 



■ man's person with ta- 
fcrwUehtbe odndsBea 
wybond. 



this rsstrictioa— -then must be a wicked intraU<n, 
which should be left to the jury. Tske the case of a 
man exposing his person en Salisbniy Plain; that 
would Im no offence, if lie took oaze that no one sheold 
see him.3 Tbe iDdiotmeat does not state an effsnee'; 
for the exposii^ and exhil»ting ase stated to liare been 
eoaunittea ** in the prssaacs** of Mary Ann, ftc, which 
is quite eomsisftent with the feet, tbit they were not 
committed In her riglU. The words <*eiq>oee" and 
" exhibit* are not terma of art, and do not naosssarilv 
import an act done la tiia actwu riew. Tbe case of JL 
r. ^ToteM (2 Cox, CO. 376) shews that the exposing 
the private parts to a woman onty is not at common 
law a crime punishable by iadictmMit. \_PUioek, C.B. 
-^We are all of opinion that we are bound to locA at 
the indictment in a case <rf this nature, and if bad to 
arrest the judgment ; it is lietter if we can confine the 
disenirion to a mere oBsstion of pleading. CretatDett^ 
J.— What is.the meaning of the word " e^bit ?" Yea 
may say a counsel exhibited great talent.] Exhibit 
and exhibited" and ** expeae and eaqweed" liave tha 
same meaning. Th^ aie not tsraw of art, and b«i 
constat that they import an aet dcme In a paeMk*s 
actaai Tiew. Here the indietment (dia^es no offino^ 
for atthouf^ it states the offsnce to hare been commit- 
ted in llie preeenoeof lfaryAnn,&e.,itdoes not foUow 
tiiat it was oommitted in her s%ht ; nor is them ai^ht 
inconsistent with the indictment to suppose that tlia 
woman's back was turned. It has always been XtXi 
down, that the exposure must hare been in the preeenoe 
of more than one. The pansags in a poblic-nouse is 
not a public place. \_Patienm, J.— The nature of the 
house may affsct tbe questioa.] Tbe case of A. t< 
Wmtmm shews that the expoeing ans^s private parte to 
ene woasan only is not at oommon law aa IndietaUa 
offence; and tlu phnss, ** condaotii^ himself la aa 
ofieiAdve ■ianner,''oanaet he so oonstnied as to imfdy 
or desoribe eriimnal oondnet, howarcr trritatiiw the 
acts might have been. The aet eMistitnting the onowe 
was eommitted in the preeenoe of Mary Ann ChertUl 
only; and, therefore, on tbe aatbority of B. v, WaUon, 
tbe present indictment cannot be sostuned. 

PrmdtrgaHt emtra.— This is an indictable oKnoe ; 
and there is such evidence aa convicts the priscuier of 
eneu^ to prove him guilty. Every one has a ri^ht of 
entry to an inn, and the Iwidlord is bound to admit all 
persons. The indictaient avers the oAenoe to have been 
oommitted in a certain public pbwe, within a certain 
victualling ale-house there sitaA^'* and with havii^ 
done the act nalawfnily, wiUtaUy, publicly, and lade* 
eently and tiiat b a naisanee at ctHnmoa law. [Pe{- 
lock, C. B.—*** Indecently," in an indictment, relatea 
rather to manners than to morals. Indecency has a 
legal meaning.! When public decency is shocked, it 
becomes a pubtic o£fonee. Expose** may mean to lay 
bare; "exhibit" to call attention to tbe parts so laid 
bare. As to the case of Salisbury Plain, it is not a 
public place. [Ormw^ J.— There is a highway 
aoroas it. Pciloetf C. B.— The real answer is as to the 
mens rea and non roa. We cannot make distinctions as 
to places: **to the pure, alltbii^ are pure;" and, to 
carry on the argument, the indutment ought to shew 
that the person was not blind.] To " exhibit" meani 
to akem to the party ; and to do the act ohaiged ia the 
hidletment bebmd the party's ba^ would not be on 
exhibition. (2 Camp. 87). The ease of R. v. Wat- 
ion is diflereet; the indictment tliere charged that 
the priscmer oommitted an offmoe against the partiou- 
hv girl, by solidting her chastity, and endeavouring 
to corrupt ner morals; and so on mdictaUe offence was 
net discIoBed. In the present case there waa a clear in- 
vasion of tbe rights of tbe public The feet that the 
woman was alMie w4b a awrs casasTty— that did not 
influeaoe the prisoner; fha place was a public one; 
ethsa had ban pnsiat and BighC bava bean piessa^ 



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THE JURIST. 



and any one might have seen the act ; which makes this 
caae similar in principle to the one tried before Parke, 
at York. Id Sir Charles Sedl^s cote, the indict- 
ment chaiged the exposure to have been committed 
** within nght and riew." [PatteMn, J.— And goes on 
to Bay, ** did expoae to the vfew or* &o.— did expose to 
the new of the persons so present. It is quite consist- 
ent with the present indictment, that, although no per- 
son saw him but the woman, no offence was commit* 
ted. Whv were not the words '* to the view oP' in- 
serted? Clarison. — Those words are used in Mr. Arch- 
hold's Forms.] Those Forms are no authority. TPol' 
loei, C. B. — I must say that I know no one who, oy his 
ffreat diligence, accuracy, and perseTerance, has deserved 
better of the Frofeasiou and the public than Mr. Arch- 
bold. We are only here to see that eveiythiug necessary 
is positively charged in the indictment, not what might 
he. Tliis indictment imports merely that people might 
have seen him. We are here to see that the act charged 
be a crime, and, as roch, it shouM dlstinetlr appear 
upon the record.! The udietment clearly siiews an 
onfence against public decener; and although only one 
person be jiresent, tiiat is snmeient to establish it. One 
person's evidence is sufficient to prove that a house is 
l«pt as a brothel. The prisoner's ^m was to commit a 
ffTOBS public offence, and the woman saw it. The place 
in which the act was done shews it to amount to a pub- 
lic oflfence. If the crime had been the exhibiting an 
obscene picture, the exposing of it near a public high* 
way would have been sufficient. 

CtarktWf in reply, quoted Strange, 789. 
FoLiACK, C. B.— It appears to me that a conviction 
ought not to have taken place, and I consider that the 
case of R, r, Walton covers this case. It is not neces- 
saiy to decide whether the indictment be sostdnable or 
uo^ though, in paaring, I may say Uiat It would be 
better to adhere to the usual precedents. R. r. Wattcm 
deddes my judgment. There, there were two counts; 
and, on proof tiiat the act was done in the presence of 
but one person, the defendant was acquitted on the 
second count; and, subseqnentlv, judgment was ar- 
rested on the first count, which alleged the act to have 
been done in the presence of but one person. Now, 
the evidence in the present case shews that but one 
person was present when the act that would constitute 
an indictable offence was committed. Striking out of 
this indictment all that was not proved, it bnngs the 
wfsmt case within the ^inoiple which govemM the 
decision in A. t. Watson, The result wiu be, that all 
that makes the case different from the one dted will 
be struck out, and the indictment will become one 
which, on the authority of R. v. Wat t on a case that 
we ^Uy confirm — we ought to arrest, unee the evi- 
dence is onlysafficient to sustain such an indictment 
as in R. v. Watson; therefiwe, no convietion ought to 
have taken place. 

Parke, B. — I am of the same opinion. I think that 
the phrase ** in the presence of" means in the sight 
of." I will not say whether the indictment might be 
bad in arrest of judgment; perhaps it might be held 
If we strike out all that is not proved, the case 
es identical with that in R. r. Watson; and by 
that we are bound. 

Pattbsov, J.~I am entirely of the same opinion, 
and on the same munds. If ttie case of R. r. Vr oCmhi 
l>e correctly decided, the words in this indictment, 
stating the exposure and exhibition in the presence of 
divers other of the liege subjects" &c., are material ; 
but they are not proved. If we strike them out, then 
it follows, that the case is exactly on all fours with 
that of R. V. Watson. As to the indictment, I am not 
called upon to say whether it be bad or no; I own I 
entertain a very strong opinion about it, but I guard 
myself against sayhur that it is a good indictment. 
Cbbhwui, i.-~-'Sb» words bemg struck ont brin(a 



the case within the rule laid down in R. v. Wattoi 
I should be reluctant to say that the indictment wi 
bad in arrest of judgment; but that is not thspi^ 
before us. 

WxLLuin, waBaTni,^}m>itUo» fnoAai, 

FAEROOATIVE COURT. 
AcASTER r. Andbbson.— iVop. 15. 
Executor's Inventory and Account — Release. 
An Executor was called upon by a Residuary Zegatet t 
exhibit an Inventory an« Account of the Chads of tl 
Deceased. A /ortnal Release had been given to fil 
Executor if the Residuary Legatee and her HuAanA:- 
Heldy that the Executor wai, nevertheless, boimd to a 
hibit an Inventory and Account. 
This was a proceeding by the residuary legatee ft 
life aninst the executor of a will, calling upon him 1 
exhibit an inventtoy and aeeonnt ot the estate of th 
testator. The executor appeared under protest, sUe; 
ing, among other thtnn, that the party proceeding tw 
together with her husband, releaaed and for ever dli 
charged him, his heirs, administraton^ and ass^ini, i 
and from all manner of action and actions, caois an 
causes of actions, suits, debts, due^ sum and sums c 
money, accounts, reckonings, bonds, bills, specialUe 
covenants, contracts, controversies, agreements, pn 
misea, variances, damages, judgments, extentik execi 
tiona, claims, and demand whatsoever, in law an 
equity, which, against the executor, the party proceed 
ing and her husband, or either of them, ever or thei 
hu, or which they or their heirs, executors, or sdmi 
mstrators could, should, or might have, for. upon, o 
by reason of any matter, cause, or thiiw woatsoerei 
from the bM[inning of the world to the &y of the dat 
of the said indenture and release. The act on petitio 
went on to state, that the release was a full and com 
plete discharge of all obligations on the executor; tbi 
the parties thereto were fully acquainted with tiie at 
ture and effect of it; and that, moreover, the balsnc 
of the personal estate of the deceased was, after paymei 
of the funeral expenses and the debts and liabUitii 
due and owing by the testator, banded over to the res 
doary legatee and her husband, who gave th^ receipt 
and acknowledffments for the same ; and that the wutl 
of the eetat« bad been administered by the executoi 
and it concluded by snbmittiiw, that he was not bomn 
and ought not, by reason of we premises, to be con 
pelled, to exhibit an inventory of the goods of the d< 
ceased, or to render any account of the administratic 
thereof ; wherefore he prayed to be dismissed from tb 
decree calling upon him so to do. 

Bof^ord^ in support of the protest, submitted, th 
the executor was, by the comprehenuve releaee glvt 
bjr the residuary l^tee, in which her hnsbana hi 
joined, discharged from exhibiting any inventory an 
account; that all the proceeds of tbe estate, after tl 
payment of the debts, liad been handed overbyhin 
and that he was not now to be called upon to aeooui 
[He cited Millinglon r. SorOft (1 Lee, «26).] 
Ht^ard, conto^ was stopped by the Court. 
Sir H. Jbnnxb Fust.— The ease of ^Huy r. JiuA» 
(1 Hagg. lOG) is decWve of the question. It isj 
matter of duty, and part of bis oatb, for an execil| 
to deliver an inventory and account when called up) 
to do so. Here is a release of an extraordinary ka 
drawn up by the executor himself, a solicitor, in | 
own office, cont^ning a discharge from all ^msa 
from the beginning of the world to the day of its da 
I have no heeitation in overruling the protest, andi^ 
recting the executor to exhibit an inventory audi 
count. The question of costs may stand over until | 
case ta finally disposed of. 



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THE JUBIST. 



4S 



nCE-CHANCELLOR KNIGHT BRUCE*S COURT. 

HXS ROTAL HlOHKKSB PBIKCK AUKBT V. StBAROK. — 

Taw Attduvkt-Gbckul v. SxuK.-~Dee. 14 tmd 10, 
IM^ tmdJtm. 10, 1849. 

fl^ Pj iq pw ft > ZVyy i pftB ii Gatalogti*—Ii^function 
— Praettce — Actum. 
He wirtilor Pmprietor of an unpuUithtd U%erary 
«r orturtKs/ JFenf w ail(fi«rf to rtatmm Partiety 
MmmA^t «tC«M«/ a KnowUige of the Sti^«ctt of 
mdI >r«*i, fnm jmbUfkimg, wiMoHf CbfuoK, a 
fi i rt^f w ii M «n g >M ij^ Kfen^JrtN^, ami eommeMiingon 

lU PMieatim of a itacriptnt CataUtme, made If C- 
mitim t»* Camtaa of A.<md B,,tK« PtatHtirt Con^ 
MrtoW Plmml^ m ike Suit, (Oe Meatu of wtaHttg 
aiici »0v WMAt^ obUnmetf)t of Btchif^t exeeutod fy 
A. ami B.y tie Produce tf tMHr combined priocOe 
Labam; fir their jmwaU Use, ami tut pMiOted If 
liem, « m hOtifirmm If O. wUk Property ^ A. 
mtd B. 

Vid m je m eseemtei If them th^ are entitled to retain in 
a Stmte f^Privatf, and to withhold from Publication; 
mdmdk Bifkt of Priva(fie not hit GifU of In^ 
fnmmnMef aome of the Etehingt to private Friendt; 
mtrhr ftiemgthe PlatetiniheHemdaof a PrinUr, 
telaieAprmioiu for the Vee <^ A. emd B,; nor If 
dr Hk^ Ikmt Tm^MWumt iwfv taken wiihota thw 
Ouaa, the Platm bemg their wtdeubted Property. 
lieJt^^ A. and B. extendi to the Preeentionof 
Perteiu, miimty obtauntu a Knowledge of the Su^eete 
ef the SdtinfMy/rom puNithing, without their Coneent, 
m Dmrifdien, • Smm m n ty, or a Catalogue of them. 
IW bill in this caw stated, that her Hajaety the Queen 
imi the ptaintiff had occarionall^, tor their amusement, 
mk dnwinga and etching being principally of lab- 
jBlief priTate and domestic interest to themselves, and 
eCvtaieb etchings they had made impreanons for their 
m wty and not for publication. That, for greater 
lonCT, aach iuptaauons had been for the most part 
■all lif Bcans <Df • private press kept fixr that purpose; 
tti At plates thensdves had been ordinarily Icept by 
hrBi|aity ukder lock, and tiw inpresrions had been 
fiw i iasMaeof the private a^artmentaof her Majesty 
*i Via^K and in such pnvate apartments only. 
tWt fta defendanti^ Strange and Jad^, had, in some 
HMff, ibtsinrd acnne of such impressions, which had 
km iBii^iiilioaaly taken from some of suoh plates, 
alM thcT^y been enabled to form,aod had formed, 
agsnoT or coUection of such etchings, of which they 
'"ten ded to make a public exhibition, without the per- 
mimaa oC her Majesty and the plaintiff, or either of 
thsa. Hid sniast their wilL That the defendants had 
<emft3ei sod prepared a work, which had been printed 
aii peUisbed by the defendant Strange, of which the 
or cover was aa Ibllowa:— A descriptive 
fit i tig ie of the Boyal Victoria and Albert Gallery of 
WRML** [Then ndlowad a quotation from Sbak- 
^"ft.} ** London. . . . Every pur^aser of this 
otslegBe will be presented (by permunon) with a fsc 
nfle oi the aotograph of either her Mmesty or of the 
Pnaee Consort, awraved from the origimu, tfae selec- 
tiia Uag left to the purchaser. Price sixpence." And 
*kid work had been compiled, printed, and published 
^ th e defendant Strange. [Then followed a long in- 
tndoction, stating the general nature of the subjects, 
ndthen a detaikd list of sixty-three etchings, with 
*— iiiinJsluiji observations on them, and various &cts 
«c stteged &ets relating to them.] That the catalogue 
wrid Dot have been made except from impresBions sur- 
WftiUuosly obt^ned. That the impressions were in- 
twad &a |«ivate uae, and not for public^ion; and 
^ few had been given away, and those only to pri- 
^ bicndiL_(aQ which is set forth in the pMntuTs 
mm'A). The biU thn, as amended, chained, that, 



as to some of such impressions, tha same were prodnoed 

and obtained in the fulowinff manner; certain of the 
plates were given to Mr. Brown, a jtrinter at Vlnd- 
sor, for the porpose of printing off certain imprea- 
nons thereof for her Majesty and the plaintiff; and 
the Bud Mr. Brown employed therein a petaon of the 
name of Middleton. who, without Mr. Brown's conssnt 
or knowledge, and in violation of the confidence re- 
posed in him, took impressions thereof for himself; and 
the said Jas^r Tomsett Judge has bought, or in some 
manner obtained, the same from the said Middleton.** 
And then, among other charges, it was charged, ** that 
her Majesty the Queen is interested in tlu subject- 
matters of tiib soity or sane of them, and ^t tha 
Attorney-General ovgfaL by rcaaon thereof to be a 
party defendant hereto far and on behalf of het Ma- 
jesty." It was tlien prayed that the defimdants might 
oe ordered to deliver up to the plaintiff all impreasions 
and copieaof the said several etchings respectively made 
bjr the plaintiff; and that they, their servants, &c., 
might be restruned by injunetion fix>m exhibiting the 
said gallery or collection of etehimjrs, and from making, 
&c. copies, &c.,(a8 read in the judgment of the Court); 
** and that the said defendants, their servants, agents, 
and workmen, may be in like manner restrained from 
selling, or in any manner publishing, and from printing 
the said descriptive catauigu& or any work being or 
puiporting to be a catalogue of the sud etchings; and 
that all the copies «f the said e«ta]<^e in the pMsssston 
or power of the said defendanta may be given up to be 
destroyed." The biU was filed on the 20th October, 
1848, on which day the four affidavits, on which tha 
iujanction against the defendant Strange was granted, 
were filed. On the 23rd October and 4th Novem- 
ber the bill wss amended and re-amended. Contem- 
poraneously with this suit wss an information filed by 
the Attorney-General against the same defendant, m 
most respects similar to the bill, and praying similar 
relief. Mr. Edward White, the solicitor of the plain- 
tiff, by his first affidavit, said, that his Boyal High- 
ness, on the ooMsion of making his affidavit informed 
deponent, that he recollected that on one occanon 
some of the plates were sent to Mr. Brown, a {oinia 
at Windsor, for the purpose of taking some impres- 
sions for her Majesty and himself. .... And that 
the Prince farther informed him, that, according to the 
best of his recollection and belief, the above was the 
only occasion on which any of the plates were out of 
the enstody of her Miyesty or of himself ; and that all 
other impressions from such plates were made from the 
said private printing-press in the royal palace, in the 
presence of her Majesty and of himself. Mr. White, 
in another affidavit, said, that, on the 17th October, he 
had an interview with the son of Strange, who admitted 
that the catalogue was printed by his father. Mr. 
George Edwwrd Anson, keeper of her Majesty's privy 

Snrse, among other things, deposed to_ receiving tiie 
escriptive ctUalogne directed to ha Majesty ; " and I 
say, that I know the etchings mentioned in the said 
catalogue, and I know that the same are kept with 
great privacy by her Majesty and his Royal Highnesi^ 
and that impressions of such etchings are kept in the 
private apartments of her Majesty, and in such apart- 
ments only ; and that a fe w, and very few only, of uiem 
hare been ^ven to some of the friends of her Majesty 
and the Pnnce; and I believe and have no doubt, that 
no such collection as that advertised for exhibition in 
the said catalogue could have been formed, except from 
impresrions surreptitionaly obtdned from the private 
apartments of her M^estv; and I believe and have no 
doubt, that the same has been so formed." The affida- 
vit of his Royal Highness Albert Prince of Saxe Cohorg 
and Gotha, Consort of her Majesty the Queen, after 
referring to the catalogue, said, that the etchings were 
made by her Higeslgr wd Dimi^ fw thdr piivate vm. 



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46 



TH K JURIST. 



and Qoi for pablteation, «b4 that " we had k private 
press, firom which we occarionaJIy printed impreisioia 
of U» etchi^ ; aad that the {tete* were ainl are kept 
lacked up by her Miyeetv, in order to prevent the same 
beeonung pnUie; bnt taiit copieB of the impresnoiM 
ivbre placed aad left in eeveral of the private afaxt- 
nents of her U^esty at Windsor, and in such private 
•partmenta only." That "among snch etchings an 

grtnuta of mTself, the Prince of Wales, the Princeei 
lyal, and other meniben of the royal fanuly and per- 
8(»ml Mends of her Majesty ; and that many of tnem 
were drawn by her Majesty from life and afterwards 
trwsferred to copper, and etched her Majesty and 
Uyself; and amount sath etehinM are portraits of 
some of oar &vounte don, t^cen by her Majesty and 
myself irom life, and etchinn from old and rare en- 
navings in the posBeesion of her Majesty, and several 
nom nch origtaid derinn as in the add eatdogne 
lAentioned," &e. That ^' the im^enhms of the said 
etchings were intended for the pnvate nee of her Ma- 
jesty and myself only; and that, although copiea of 
some of them have been given occasionally ana very 
xarely to some of the personal friends of her Majesty, 
one to one friend and one to another, yet I say, speaking 
positively for myself, and to the brat of my belief few 
ner Majesty, that no snch colleotion as that so adver- 
tised for exhibition as aforesaid was ever given away 
by us or either of usy or by onr or either of our per* 
missioD." Tliatt ** I believe and have no doubt, that 
no sBch collection could have been fomwd^ except by 
impressions surreptitioUBly and improperly obtained; 
and that the tame has been so formed. And I believe, 
that the defendant William Strange, or hn confederate 
or Qonfederotes, the person or persons really in poesessien 
of the collection advertised mr exhibition, must have 
ohtuB«d and did obtain the Sane from some persim or 
persons snrreptittonsly. And I say, that, b^ whatever 
iseans the same were obttaned, the exhibition of the 
sad etohingb, or of any of them, is without the sanction 
and against the widtes of her Majesty and myself ; and 
that such exhibition will be in the highest degree of- 
fensive to her Majesty and mysdf. I say, that I be- 
Meve that such catalogue, and the descriptive and o^r 
remarks therein contained^ could not nave been com- 
piled or made, except by means of the possession of the 
imral impreaaions the said etchings so surreptitiously 
obtauMd ai aforesaid." The affidavit then spoke of 
tlw time of the fiwt of the intended exhibiti<m first 
coming to the depovwnt** knowledge. Upon thcne nm- 
teriiAa, <n& the sBme 20th Oct<^T, an order vras made, 
iHtereby William Strange, his ^nts, servants, mm 
workmen, were restrained from exhibiting the gallery 
or collection of eichinn in the bill mentioned, or any 
of such etchings, and from making or permitting ttf be 
made any sach en^vinge or copies of the same or any 
of them, and from in any manner jpublishing the same or 
any of them, or from parting with or disposing of the 
same or any of them, and from seDiog or in any manner 
publi^ing;* and from printing the descriptive catalogue 
in the bill mentiwied, or any work beii^, or purporting 
to be, a catidogoe of the said atehiim^ untifhe diould 
have folly answered the bilL or the Conit riionld mi^e 
ordw to the contrazy. On the 6th Norember a motion 
was made fair the exteui<nt of the injunction, so fiir as 
the etchii^ were concerned, to other defendants; and 
on that occanon the same was extended, the motion 
being supported by the foUowiiq; affidavit, filed on the 
4th llovember* :•— Mr. J, B.Brown^H printer at Windeor, 



* It ll neeesiaiy to state the effect of this evideace, as Om 
motion for dUsoIviag the lojonetion u against Strange *u 
bttard on the astomption, u hb Honor underttODd, that a 
material htt tlierda eon ti fa mJ , rit. that MiddletMi was the 
sarvMt of Mr. BteWn, the prltter, Ms rfdadttod on boOt ridet, 
aal as} wMhm Oi^ tlH ugtMt WnM bs obsotte. 



by his affidavit, stated, that he was entrusted by her Ma- 
jesty and the Prince Consort with the printing of impree- 
eionsfrom plates-whieh had been engraved by them, and 
wasao ettpWed ftnm October, 1840, to NoTember, 1847, 
and that he faithfully sent all theperfiect impressions to 
Windaor Castle. In thb Wmrk Mr. Brown employed s 
journeyman, whom he named, and in whom he had 
confidence, as pressman, who Mr. Brown swore be 
believed, as he had been informed, had secretly nude' 
impressions of the plates, which impreesiotis he retidn*: 
ed without the consent or knowledge of Mr. BroWn,i 
and which was in violation of his duty, and of the con- 
fidence reposed in him by his master. A man named 
Whittington, formerly in the employ of Mr. BroWn, 
swore that he recollected the taking off the iropressioiui 
command of her Majesty, and that, although' th( 
journeyman employed as heme mentioned always re- 1 
turned to Mr. Brown all the print paper didifeiea oit^r 
yet be haMtually took off copies for nimseif on card oi 
common jMper. The deponent alao swore that he had| 
about thirteen of such impresrions, which the joumsy- 
man gave him, and that about a year and a half aM 
Jasper Tomsett Judge met him in the street, and told 
him that he f Judge) could make it worth h&s while il 
he wished to obpose of the prints. Mr. J. F. Lawreine,^ 
of Windsor, deposed that he knew Mr. Jasper Tottnett 
Judge, and reeonected bearing a rumour, four or tfre 
months ago, that Judge had a colleotion of printt and 
etohings made by her Sbjesf^ and Prince Albert; and 
afterwards met Judge, and said to him, *' I understand 
you have some drawian of the Queen's and FHoee 
Alberta f* To which Judge replied, "Oh, you are 
quite welcome to see them.** l%at,aboutaiiionthiAa 
such eonversation, and not more than three er fbnr 
monthe ago, deponent called at Judge's boose, wbe 
then produeed a portfolio, with Aant dehty prhilaia 
it» and said that they had been a^fraved by tin Prtosa 
and the Queen. That the deponent observed the aaaiM 
of the Queen and Prince Albert on them, and noticed 
that on some of them the stgnatures or names appealed 
revmed, as they would be^ snpposnig the nanee had 
been engraved on the plates aa the signatures voold be 
usually written ; and that these prints were on sepaiste 
sheets of paper, some of which appeared to the de- 
ponent, Mr, Lawrence, to be card-board paper, and one 
or two amwored to be riazed fodscap paper. The de* 
fendant Stranjue, after una extension of the injnnetion 
to Judg^ pat m hii answer, by which he denied that 
he haain any manner, Mtber anneptitiondy or oAmV' 
wiae, obtained or posaeaaed himadf m any impreanraaof 
the etchings, or copies of tiiem. Believed thU the de- 
fendant lir. Jasper Towsett Judge purchased osrtai» 
tepreaaionfl of ue etddnga from one Middletoa, oae 
onfy of wlueh etchings was aent to him (S^nge) for 
the purpose of Irein^ mounted, and, with this exeeptieSf 
he denied that any Hnpreeaions were in his po o s ca asop 
power. He believed that the defendant Judge lUone 
had been enabled to form, and had formed, a coHectieA 
of the etohiiwS' He said, that about the end of Au- 
gust, 1B48, Judge called on Mm, saying he had a co^ 
lection of the etdiii^B, frfiieh m rinwad to StramM i> 
September, and pmpoaed to Ibim to 6]dlibHtiIWI^if hsr 
Majesty and the PrbMa M not ohjeet, at the IBgnUm 
Hail, or aome other publfo inatitntitni of eqaai r>- 
^lectolrility ; and that Strange should advaaos the 
funds, and be and Judge shoold share equally the [oe* 
fits. Be thm bdievea that the impieaaiixis had not 
been improperiy obtained, but that the same bad 
come into Judge's hands faiiiy and honestly ; and afWr 
the interview. Judge wrote the descriptive eatalc^, 
which Straii^ tlien printed, striking off only fifty-ote 
copies, after which the type was braken up. He be* 
lieved, that, on the 9th October, 1848, Judge, with a 
view of bringing t^e subject of the exhibition to the 
natioe Of h«r U4ifla^«d «h*PriDoe» and of aaoertrf^ 



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THE JORiSt. 



47 




• it WW «li$wted lo, ««t thm «opl«B «r the 

OMMcif tteBdnsMLMidothm tkeoatalegae 

MAtMtha AntinliMriHm ht neeivBd tlmt tb* 
•xhibitMM «M ahumwTtit of by Imt 

A BMnrieT, is wUeh it wu Bai4 that Mr. 
.ftabdior, ted stated tiMtfiMt, vpon wfatoh he 
1 1* teke no fi Aer itepe In it, sad nbandoa 
i^vkieh be hmi moeoraingly done; and be 
denied that he emr tlmoteaed or intended to 
Hck cxihifaitiaB, «r to nake mj «^es or en- 
gf tbe etebinga. H« Mod, that, erer ^nce he 
of the ol^eedon, Iw was andoai^ ae a 
lini md dvtifU eabject, m enrf rMmeet to comply 
iNk the wiihee of the Q»Nn, not only 1>y abandoning 
lh» iihihUinii, bat by defiToiinc vp 9& eofim of iht 
MlalMei ia Ua power, « bar Majesty mght dlnet ; 
■■i a£» by pving lua aauaam that m w«nld nntber 
' be A patty to any e^ibitiea of the «t^- 
' " Bof tbeeatalogne; and with thii view 
»«MM*inam had taken plaM) between Mr. W. H. 

t iQ&ntor on hia benaU^ and Mr. White, on 
beUr <tf W MaiMty and the Prinoe. That in this 
CHMipaBdaet ail diav^teet to the Qseen was dia- 
cMiri, airffomiriiinT iMir that the prooeedinga were 
m^Btatti without Mr. Sfarange having an opportunity 
i^«^lnsrtiaB, and an olfor to abetwi from the exhi- 
U6m, to giTv up the eopiee of all eatalogues, and to 
|iee iafoi M a ti u n as to how the etdili^ WMe ohtoioed, 
aetesi he was able; and he wis met 1^ a demand of 
and of BiLpreeaion of vwmt, that bek|^ re- 
f em the nond tiiat it wmU bo an admiflrion of 
Mr fliiet on 13m partof Mr. Stnuue, wfai^ he 
and mA^nantly denied; and tiiii corre- 
ooaed, witii an vBv, th^ if Mr. Strange 
pre np aM copies of ^ the oatolegnei, and nn- 
wt to pabliw the same w tatf rinitar, the in- 
I and bcH dionld be dtsmiseed without eoete, 
was inroad to, exeept that the dismissal Avald 
to with eoati, ao as to save Mr. Stoange harmlees from 
which modifieatten wH refnsed. The answer 
to my, that Mr. Strange was altogether nn- 
i of bnrh^ done anylhing respeeting tiie exhl- 
d tatdegiiB oentrafy to law, or having acted 
iAaaasbceomcBauiffcl and dnttfal sabject 
efha-MMty tibeQsMn; and that he ii both monlly 
mi Jsgalfy free from all iaputattoa of wrongdoing 
aatoaaod W Ifaa MB ; and he iwiita, ttM^ aa a natter <rf 
Anct ngbt, be is entitled to pnUish and oircalato the 
e, «sd that the plnoiifF has no l^al right to 
neb pnblseation; and that he is willing and 

to AssgD whoterer legal rights be may hare to 

paMU lbs rstaVrynf, and to abandon its pnblioation, 
ad to give np all eomeB in his possession or power, if 
the hdbnaatioB end bill be fismissed, and the defend* 
aolbe indeflnufied for all ooste; and he enbmitted to 
tta Covt, wfaethsr her M^geaty tiie Qnom has any in- 
iHBitm thek^ri matters in tbeamt; and Indsted that 
IfaBsynl H^ffanees Prinoe Albert faai no right of pro- 
as^ m any of Aa dmfrinci or atdiiagi^ or impresrions 
tmattKaama, wUflbfanvaMendoDeorenontedbyher 
■■jmj Ifa Qoaen aIeoe> orielnay with hisRo val High- 
warn; md th«i Us Royal Highneis had nemht in wis 
•riltorastoatB tbe exhibitioB «r pnbUoatton of the same, 
mayofthees; and he insisted tiiat his Royal Hwhness 
ea^k to bar* (firtiMoiatied what drawings or otcnbigs, 
erwModona from uie same, he olahned aa his o wn pro- 
fsttf ; md (he deAndant elaimed the beneat of «hls 
ehwolton in the same way as if be had demnrred to the 
M. A netsee of Bsotbn, fiw the 7tfa December, was 
by niiaasii. to dtassive ^ Injanotton, eo fiv as H 
' *r^/^»'" ^igntM, a s wanta , and voikmMi,'from 
erfaiyiw|iaWhhtng,aMt#ompwiHaR 





the deecitptive eatriogne In the bUl mentioned, or any 
work being or pnrporting to be a catalogne tif the saia 
etchings. On it being staied that die defendant had 
that nonrii^ filed amdaTits In answer to affi&Titgi 
filed by the plaintiff the previons day, the motion was 
ordored to stud orw. 

ZV«. 14 «NNf 16.— jgamff said, he ^meared befine tha 
Court', pnnnant to a notice which bad been given by 
the defendant Strange, to more to diseolre the injanction 
which had been granted against Mm, so ftr as itsooght 
to rastrain him from scflin^, or In any manner pnbnsh- 
ing or printing, the descriptive oatalogne in bill 
mentioned. {iTm!^ Bneet V. C— Tbia is a limited 
application to dissolve an injunction in part. If T re- 
eoiieet rightly, when the application was made, this par- 
tieolar portion of tbe case which is now before me wai 
one en which I expmsed a considerable difficulty at 
the time. I thought, upon the whole, however, that it 
was tile r^ht coarse to grant the- injnoctiott. I re- 
quired an undertaking as to damagn, which was givnt 
mth great readiness, certdnly.] The bill itself state^ 
that her Majesty and her consort had, for their amuse- 
ment, occasionally made drawings and etchings, prin- 
cipally of snbjecta of privsto and domestic interest to 
Aemselves, and of which etohines they have made im- 
presrions tor their own use, and not for publicstionj 
that, for greater privacy, such impressions hod fox 
the meet part been made by means of a private presi^ 
and the plates themselves had been ordinarily kept by 
her Majesty under lock, and the impressions nave been 
[daeed m some of the private apartments only at Wind- 
sor; that the defendant Strange, and Mr. Jasper Tom- 
sett Judge and Mr. J. A. F. Judge, in some manner ob- 
toined some impressiona snrreptitionalv taken from the 
plates, wfaerebr they had been enabled to form a galleiy 
or eoUectioQ of such etchings, of which they intended 
to make an exhibition, without or against the pennls- 
won either of her Majesty or Prince Albert. The re- 
marks and criticisms in the catalogue were perfectly 
unobjectionable, unless so far as a mind of great delicacy 
and refinement might think them too flattering or laud- 
atory, although the writer might think that the works 
were such as language could scarcely do jastice to. It 
was not pretended that the description in the catalo^e 
contained anything contrary to public taste or public 
decency. The injunction hud been obtained upon foul 
affidavito, one or iridch was made by Mr. Georra 
Anson, who atoted that the Imprea^ona were kept u 
the private apartments of the Castle ; and his Royal 
Hignuess also swore that they were kept in the private 
apartments of, and printed off at a private press in, th« 
Castle. The Information had been filed with great pre- 
cipitancy, even before an answer to an application 
from Mr. Strange to the illustrioua personages or their 
servants could be obtained. The Court would see that 
Mr. Strange had been represented throujfh the pres^ 
which communicated the proceedings in this Court, in 
a very questionable light indeed ; he was charged with 
being a parly to what was termed an improper and 
surreptitious obtaining of the etchings. [_Knight Bniee, 
V. C— The cat(d<^e appears to be printed by Mr, 
Strange. I ^h to know whether he was the pub- 
lisher 08 well as the printer 1— whether it appears 
tiiat the defondant printed the catalogne for him- 
odf or for any other petson ?] The catalogue never 
has been published. It was printed for himself, and 
with a view to a joint speculation between himself and 
othen in the speculation, but at his own expense, and 
at his own press. It was unfortunate that such charges 
hod been made as these contained in these proceeding 
against a respectable tradesman. Mr. Strange, in his 
answer, denied that he had in Miy manner, either but- 
reptitiously or otherwise, obtained or possessed himself 
efany impnsBions of the etohings, or copies of them. 
He btliered that the defendant Mr. Jasper Tomsett 



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THE JUBIST. 



Jniln ptuchued certain impreauons &om one Bliddle* 
(oiij%nt tlui one only of each impresdons was sent to 
Hr. S^nge for tiie purpose of oelng mounted ; and, 
vitii tikis exception, lie denied that any impresuons 
wm in his posaesdon or power. Ue believed that the 
defendant Judge alone had been euabled to form, and 
bad formed, a collection of the etchings. He said, 
that, about the end of August, 1848, Judge called n^tt 
him, saying he had a collection of the etchings, wmch 
he uiewed to Strange in September, and proposed to 
him to exhibit them, if her Majesty and the Prince did 
not object, at the ^yptian Htdi, or some other place 
of equal respectabintv ; and that Strange dionld ad- 
vance the funda, and he and Judge should ahare equally 
the profits; and he then believed that the impreanoiu 
had not been improperiy obtained, but that the same 
had eome into Judge's hands and honestly, and 
that the catalogue was sent openK^ and undiaguisedly 
to the palace. [JTni^AijBnMV, v.C.— DoesBIr.Strange, 
in his answer, state the reason for sending themt] 
Yea; he says it was to bring the subject under the no- 
tice of her Majesty and his Koyal Highness. He says 
that the catalogue has never l>een published. What- 
ever might be Mr. Strange's right as to the matter in 
question, he had instructed his counsel to say, that, as 
one of her Majesty's subjects, he owed to his Sovereign 
a duty much beyond what the law imposed upon him ; 
he offered a voluntary tribute of loyalty to her Majesty, 
and of duty to her illustrious consort. The Court 
would scarcely presume any evil intention on the part 
of individuals who had, before publishing the cata- 
logue, applied to those who might &ncy themselves to 
be aggrieved by the publication, and had, at the very 
outset, brought it under their immediate attention. In 
piopoung the exhibition, Mr. Strange might have acted 
under a mistaken notion of what might m agreeable to 
the wishes and desires of those who were of such ele- 
vated rank ; but the case was destitute of any evidence 
shewing that he was actuated by any evil intention, 
or that he had been guilty of any wilful misconduct. 
There was nothing to lead the defendant to believe that 
Mr. Jasper Judge was not the bon& fide owner of the 
etchings, and had follower to do with them what he 
pleased. It was adnutted that man^ copies had been 
made of the royal etching and distributed by her 
Majesty and his Royal Highness to various personal 
iHends. It was a novel doctrine that there was any 
l^al offence in collecting copies into one place. What- 
ever might be Mr. Strange's rights at law or in equity, 
the moment he knew that the publication was disa- 
greeable to her Majesty he stayed the publication. It 
was to be hoped that the time would never come when 
the duty of a subject to his Sovereign would not be 
measured by what could be rieidly enforced at law. 
However this might be, it was difficult to understand 
how the rights of any one could be interfered with by 
the making of a catalt^ue describins the articles, and 
making remarks upon them in the shape of fiiendly, if 
not flattering, criUcism, Assuming that an illustnoua 
personsge or a nobleman chose to employ a portion of 
his leisure upon certain works of art, wHich might be 
found at various places, what power was there known 
to the law to preveot any person from embodying in a 

1)ublication the result of his acquaintance or know- 
edge of those works 1 If there was anything ofFenuve 
to morals or law in such a publication, the remedy would 
be in another court. At all events, although the owner 
of a print might prevent another from publishing a 
copy of it, it was impoceible to prevent the other from 
describing iL and pnntiog and publishing such de- 
scription. The learned counsel put the case of private 
theabicak at a royal court, in which certain ladiea and 
gentlemen of the court toolc a part, and eontended, that 
no one had a right to restrain a puUieatiou describing 
vhat had taken plaoe, by any one vho accidentally ac* 



quired a knowledge of the dnunatio entertainxikflad 
The two rlnsnm of cases most analogous to the prtaat 
weretiioM relatiiw to the puUicatiMi of letters writtei 
between private mends, and those relating to the puh 
lieation of lectures. v. Pritekard, (2 Swanat. 413j 
decided by Lord Eldon, shewed that the property in 
letter remained, to a great extent, and for quau6ed pux 
poses, in the writer ; out that was not the present case 
There the production of the mind of the sender was in 
trusted to the hands of another for a qualified purpose 
The case of lectures also differed from this, the right o 
property in the lectures clearly remaining in the partj 
who delivered them. The present was a case in whicli 
a Prince Consort having executed, certain works of art 
a party, who was aware of their nature and Talne, pro 
meed to describe and eritime them, which he was ena 
bled to do merely by the exerdse of his own fiaenlttea 
and his own intellect. As to any injury to private aiu 
personal feelings, the Court could not regard that aa i 
part of the case ; the question was strictly one of lav 
applicable to property. Whatever the deciaon of tht 
Cfonrt might be ae to the matter of right, it waa thede 
fendant*s anxious wish to consult the wishes of he 
Majesty and his Royal Highness, although he wooli 
not permit an injunction to exist agiunst him unless i 
was warranted by law: yet what was done by the Conr < 
would not govern the defendant Mr. Strange, who callat 
upon the Court to dissolve the injunction, in order ttur- 
it miffht be ^ewn that whatever he did enbeeqaentiy 
was done voluntarily, and not from compulsion, fie 
undertook that he would not, under any ctmnmstonea^ 
or from any lootive, do any one act in reference to the 
catalogue, or in reference to what was oompluned of in 
this information, of whldi either her Miyesty or his 
Royal H^i^mess could fsel the dkhtest disapprobatioo. 

Warrmy on the same mde, referred to tne cases oS 
Sovtht^ Y, Sherwood (2 Mer. 435) and Lord Oranard v. 
Z>tfn«in, (I B. & B. 207), for the purpose of shewing 
that the Coui-t, in deciding cases of this description, re- 
fused to pay any attention to allegations as to the feel- 
ings of patties, which, however natural, were wholly 
irrelevant to the question of property or no property, 
and thate^uitydidnotinterfBreby iiyunctitmtopniiiah 
or prevent mjury, but merely inquind as to the exist- 
ence of any radnttve property. The question was also 
one of juiisdiction: this Court had no power to prevent 
even a crime, there being the pro^ tribunals for sneh 
cases. If a legal right w«re in existence, a Courtof law 
must decide it ; but it was only where a right to pro- 
perty was in danger of being interfered wiui, that the 
owner of that property was allowed to come to equity 
for protection. Throughout the whole of the bill there 
was an omission of any assertion of property in these 
copies of etchings. The expreemon "surreptitiously," 
which had been used in reference to the mode of obtain- 
ing them, had been also omitted from the amended bill. 
Indeed, it was quite possible that the defendant might 
have lawfully obtained copies from some of tiie friends 
of her Majestv, or from some foreign'potentate, to whom 
copies might have been given. It was to be regretted 
that the advisers of her Majesty had, by these proceed 
ings, indirectly attempted to interfere with the freedon 
of the press. It was, of course, a matter of pride to 
this country, that it was under the sway of a monarch 
thus accomplished; but if a spectator had arichttocon- 
templato any of the productions of so exalted a person- 
am, which he might do without any invasion of domes- 
tic privacy, he had a right to communicato full infoi^ 
mation connected with those productions. This, sub- 
stantially, was all that had been done by the descriptive 
catalogue. Put the case of a bontk fide abridgment of 
the litorary work of another person, which he con- 
tended could not be restrained oy injunction ; and he 
referred to Qyhi r. fTjfewr, (2 Atk. 141), to Mr. 
Mangham's work m " literary Fropertyy" and the can 



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THE JURIST. 



49 



rMr. AhmaM^m Leetam. 
■t mm afimn heiaa,*^ 



Tbemaxiin, **SieiiteTC 
WM that fay iriiMi the 
Covtik both of l»w aod oqai^, were nlded In caon of 
ttnadeKroticB. He nlnnd to Uie followiiig paSMgei 
ntha cBMogne aa affording eridenee of the natnre of 
tkr fsitaanu: — -Vo.a. Two Hones. Drawn and 
cfahed bj her Mafes^, after a iketeh hj E. Landaeer, 
Ut, 18^ This is a masteily effort on the part 
flC her Ujgot^ ; it ie wottfay cTen of Laodseer himself. 
'VeiT fern, with the UEcepuon of old and experienced 
BBoaianah^ coald hare prodaeed sndi effects. — No. M. 
Tw9 AcBchwomen. Inawn and etched by Prince 
Albcst, after E. Landaaer, Jan. 10, 1842. Very extra- 
■iteaij talent ie h«e exhibited by his Royal High- 
mm. It m cmd to the best ni the PriBee*8 prodnc> 
^tm, aftd wDud ha hif^y creditable erai to the most 
aada^aitiitof thepnsnitday." There oonld snrely 
beao gmA ham dene by intimatiuto the conntry the 
pfuMney which had been made by its monarch in 
tiMse ettnst acqvirements. {^Kniffht Bnuty Y. C. — 
"What is ^ mfaaing of the worda "by penuisrion" at 
Ik head of this eatidogne Probably the intention of 
ttewnter was to call the attention of the royal per- 
kthsl it was hu wish to send the work into the 



weridby ihor pcrmieaion, and to withhold its pnblica- 
tiss if sach venMson were not accorded. The work 



lad beee a«lj sent prirately and proTieionally to the 
yalscs, whtn it was, in the first place, bronght to the 
JdMtiaD of Mr. Anson. The bill in this case was de- 
Artm^ iaasancfa aa it did not distingiihdi that which 
wMthapesverty of her Hneaty and that which ba- 
lap'tebMB'TdHigfaiiass. The stat. 3 & 4 Viet. 
cS^a. l^ysondad,** that his said Serene Highnesshonld 
mm by nrtae of each marriage aoqaire, or become en- 
tiBed tos any catate or interest in any property, real or 
fMsaal, to which her Majesty may be, or may become, 
fthiid ia any such right or manner whatsoever, bnt 
ttHtdMch property diall be held and enjojred by her 
miA lUfeMT, her heira and snoccssors, as if such mar- 
riage had wvar taken place," Her Blajesty was a cor- 
poBHssB wok, as the Qoeen regnant of theee realms ; she 
ami a daaUe caparity, political and private ; and it was 
■ tlm latter e^adty snc came before the Court. The 
Ufl eoght to have steted that the property in the etch- 
iiff waa as bath hw Majestr and the Pnnce, one of 
niK. the defcndant, altboagh feeling the ntmost 
Isy^ty toaaids lus monarch, felt it to be his duty to 
fnieet Masdtf againat the injanction ; and this he did 
mat ia a ^csaoiptaons spiri^ but with that ooarage, 
■sdmtiss, and homility which became him. 

.S A iiy jfwU followed on the same side. 

BaMifl ia^iaired whether the pluntiff's connsel in- 
tiBded to read the affidavita last filed! He bad not 
lead, nor did ha intnd to read, the ddimdaiit's affi- 
dariftL 

He SnHeittr-Cemaral sud He should not insist on 
rn&g the al&daTita alluded to; and, on behalf of his 
Bsyel Higfancs Prince Albert, expressed his willing- 
aa^ ea the part of himself and his learned friends, Mr. 
SajL Tm^mrd and Mr. W. M. Jaaus, to bear any 
WBe Ibr the coone which had been pursued against 
tha ihft niTsals in this case, eepecially for the supposed 
haste and precipitancy compl«ned of. There had at 
•■e time been a supposition that the case might have 
hsea k«^:fat to a termination without the present dis- 
cassioa; but this had been rrndered imposrible, on ac- 
amat tk the demand of a full indemnity for costs and 
fXMmMti. He wisbed, and thoee who instructed him 
widied, that the caae might be trested as if it were that 
«f one of the lowest of her Majesty's subjects. \_KnigH 
Braic, V. C.^ — Upon the question of morality and pro- 
priety, I bare heard nothing substantial; nothing has 
Wa'^U that approaches to a justification of the mo- 
nfi^ mt propriety of printing the catalogue. The 
gMi i i w , whetbcr tha Coart can intarfiu^ is a vary 



diffiBtent question, and may be one of Importanee and 
difficulty aa to tUa partof the iigiiiietion.] Itisad- 
mitted that the qncmon of hw waa the first, the main, 
the most Important one to be determined. It was 
dear, that the object of the proposed publicatlMi was 
the realisation of profit from a joint speculation between 
Mr. Judge and Mr. Strange. The analogue was to be 
sold at the price of 6(1., and was to form a portion of 
the profits. Leaving out all condderations of propriety 
and molality, and dealing with this as a plain questiou 
of law, he submitted, tbat^ according to the well-known 
principles of law, the injunction was clearly sustain- 
able, llie case did not turn upon the question of copy- 
right, but upon the clear ana abeolnte property which 
her Majesty and his Royal Highness had in the etch- 
inn, copies of which, without their knowledge and 
without thrir consent, it waa propoasd to exhibit for 
the pecuniary benefit of Mr. Strange and Mr. Judge. 
The Court was dally in the habit of restraining paruiss 
from making use of the property of others, contrary to 
the will and disporition of the owners of the property. 
This practice extended to property of every description. 
The value of the property in question could not be 
doubted. The circumstance that these etchings had 
proceeded from her Majesty and her illustrious consort 
would, of courw, attnct conriderable public cnrioiity 
and attenti<m. No one could doubt that the catalogue 
itself alone would produce a large profit to the pub- 
lisher. It would, of course, be much sought after by 
persons of fiwfaion, and artists, and all who felt an in- 
terest In tiie fine arts. It had been sdd tiiat they 
eonld have been no valiie to penona of such elevated 
rank; bnt It mlriit be imagined, fox the purposs of 
alignment, that these august personages, wiuiing to do 
g<wd to some charitable institution, might have permit- 
ted an exhibition of them, the profits of which dionld 
be devoted to the charity. About a century and a half 
ago, the Earl of Arundel returned from the East^ with 
a collection of marbles of the meet valuable deecnption, 
which he presented to the University of Oxford. Thrir 
value chiefly connsted In the inscriptions which u>- 
peared upon theuh titrowliw the greatest poarible light 
upon the chronology of Greece and ancient history 
generally. Could any one doubt that a deseriptiva 
catalogue of those marbles, shewing the light they cast 
upon history, would have been a moet valuable woriCy 
of great value and importance, and would have been 
productive of great profit? No one could doubt that 
the £arl of Arundel might have sustained an injune- 
Uon against any such publication. [^He then put the 
cases of catalogues of Itbmries, of dramatic representa- 
tions, of publications of chemical discoveries obtuned 
by the genius and industry of others, of valuable re- 
cipes in medical science, and also of trade marks.! 
\_lCnight Brwxy V. C— Would a discharged banker^ 
clerk be allowed to publish the accounts « all the em- 
tomers ! I do not mean to say whether there li any 
analogy to this ease or not.] It is submitted that lu 
would not [He referred to the decision of Viee-ChaiH 
cellor Wigram in a similar case, ( Tipping v. Clmrtey 2 
Hare, 383), and read the judgment from the short- hand 
writer's notes; and referred to Maeklin v. Ri^ardtom, 
(Ambler, 604), where notes of a new play, " Love k la 
Mode," had been taken by a short-hand writer, and the 
play was attempted to be represented, but It was re- 
strained; G«v. PnlcAarrf, (2 Swans. 413); Pereivat 
Y. Phipp$^ (2 V. & B. 10); Po/m v. OatMercoIe, (1 CoL 
666); Govatt v. mnvard, (1 Jac. 8t W. 304); Green T. 
Fotffham, (1 S. & S. 308); the cases of Lawraw^i and 
Jbemeays Lectuni; Morris v. Kelfy, (I Jac. & W. 
481).] Here there had been a surreptitious multipli- 
cation of copies by a person In the printer's employ- 
ment. The vice of the printer's presnnan clung to 
the transaction throughout. Chief Justice WUmot, in 
Srkfgmtm r. 6^ (Wiimot*a Caiea and Oplnkos 



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THE JURIST. 



68), lud sud, on Uus poUt^ that whmwtx UtaJt ndi 
tiuofp took tnm ia theii tuntsd state, tnd that p«r- 
tiUonii^ KoA eantoaiiw then Mt among velatioM and 
fiiends would not pnxuy tbe |^ft> or pfotwt it agwart 
•quity. *'Xiet the hand reeeiTiii^ it," aaid kisXar4- 
** be ever to ebaste, if it came tbrongh auch a 
oomipt and polluted channel, the obligaUw of nutita- 
tion tnuat foUow." As to the professions of Up loyalty 
vhich had fallen from Mr. Stzange, throvgh nia coim- 
wl, it was iuoonaistent with what had actually takeu 

{ilace in thia matter. The motive ibr aendiag tne cata- 
Qgue to the palace admitted of man than one explana- 
tion, e^eciaUy unce an indemnity a^axnat all ooeta and 
expeuMe had been asked as a condition for itayiug the 
proceedings. I<Iothing more was desired than tfa^ the 
august personages for whom they appemd should pxa- 
aerre that calm and dig^aifisd forheamnee which misht 
be ei^iected from them, and more waa not nquiredat 
Ac handa of the Court than that which it would gire 
to the meanest subject who appeared before it. 

TtJ/ourd^ SetjU, on the same side, contaoded, that 
the Court, both upon principle and authority. coiUd do 
no otherwise, than refuse the meUm for diseolvoK the 
injunction. The case on behalf of his Royal HigEnfM 
is not put upon the law of copyright, hut npim the 
actable right to protection agamst the invasion of the 
pghts of property. The omisMon of the word *' paint- 
ings" in the Cwyrigbt Act, it must be admitted, is to 
h* zc^vettecL In the preset ease, a part of the value 
of this ptopM^ arose from the eircunistanee that it 
fiotmed « p^ Of a royal colfection, and is the lesult of 
tike oeenpations of those ugost penonuea in their 
domeedc retireneni attd dignified l«aure. The casea of 
Agf V. Curi (2 Atk. 312} and ne Dvie o/Qytaiderty 
T. ShibUart, (cited by Justice Willea in the great case 
of MUiar T. lajflor^ 4 Burr. 2303* 2417), a» in point. 
In the latter, Lord Claiendon had givu a copy of his 
"History " to a gentleman of the name of Gwynne, who 
thought right to print and publish it, or announced his 
intention of doing so. The Court was of opinion that 
the party mi^ht make every uae of the eopy, except 
that of making a copy by mulUplying it, which, it 
must be preanmed. Lord Clarendon never gave him 
Vntiunity to do. The injunctitm was acquiesced in. The 
instance of an abridgomii has beni put as beyond the 
rqach of an iiyunction ; bvt that is not this case. What 
vould he sud of a person who had elandeatinely ob- 
tained acsees to the repositories of an author, who, so 
mr from sediing publicity, sought to preserve hia ra- 
iment? IKntgh Brvot, V.C.— Your case is, that 
Middleton was a person entrusted with the posstMion 
qf articles of this kind for apteticalarpurpose,and that 
he made use of that poasesutm, so acquired, and so given 
in confidence for a particular purpose, for another and 
Indifferent purpose, agaioat the will of the employer.] 
That is so. The oerendaots in this case do not ev^ . 
•taod in so &vout!able a position as lachimo, who 
had taken an inventory of all the paintings in the 
UNHnber of Imogen, for he had been introduced to the 
mansion by her husband, and waa a guest ; but in Uw 
present case, according to the legations, a party ia 
oideavQuring to avail himself of Vut treachery of a 
VOikman, and seeking to profit by it. The rfeht of 
Wf^vrty in thie case is of a higher and clearer descrui- 
nou than that founded upon copyright^ namely, Uie 
light to the exclusive use of the property which the 
d^ndants have attempted to make use of. Copyright 
is not a simple, but a complex idea, including twe 
things, which, although not incompatible with each 
otiur.are at least entirely distinct, namely, the right 
U publication and the riaht of exclusion. 'The author 
claims the right of multiplying copies, and after his 
vwu express pnhUeation he can claim the tight first to 
»»« to the world, in the kmeet wnse, hia work, m- 
cwwfttftbimMlf all th« pcoUa whinh eaa aomto 



the mvltiidicstlaa of copies lotiw laggeet piiailifa m 
tent, and to araain to himsslf the fiutlMr i mm m ^ i 
pseseai npataun aad distant fcme wludt ha aa^f b*! 
io aara. Baia the illustiiou plaintiff ia oa wtia i d to 
iw a higher, as a^trior, and a men sacred x%bt daa 
that of u author to his copsm^; for the elaim 
tuoilar, in some re8peet&. to that <tf an author fc» b 
unpublished works, or of an artist to the oontiiUMd pr 
vac^ (tf unpublished etehinn wd engravings, to ppoinr 
which all tne judges have admitted such a puty luw a 
undcHibted and indefeasibla tight. All the judges i 
the fiunous case of Millar v. Tojflor eonowasd I ' 
admitting tiie right and pn^terty of an amthos t ' 
be secuied against copies of his manuaeript mUk ■ 
it continued unprinted, and before he had detnrmi— i 
ou giving it out to the world. The case of JfiflSnr ii 
raWor relatod to the pnUioatioa of «ThonaMi% Sat 
sons;" and Mr. Juatioe Wilfes said, "If a parky, -«ah 
had merely leave to puruae a manuscript, publiAnd i 
that was not within the statute of Anne— that in, it wn 
n*t an infriagemMt of oopyright; it was not lara» 
certainly it was not trespass ; it waa net sn indittofc 
crime. The phyrioal pn^erty of the anther in tl 
original manuscript remained; but it was a groan viot 
tion of a valuable right." And Mr. Justice Yates, M 
fining from the other three ^udgea of the Court • 
Queen's Bench wio& the ^uastum of the author'n rigi 
and property in hia own ideas, his thou^ita and 1m 
guage, after he Iiad published it to tlu wsrl<^aa«i 
" Moet oertainly the sale pfoprietor of ai^ cofy bb^b^ . 
determine wheuer he we«U print it or net. M 
peteen takes it to press without his c ai ia o nl> W 
certainly a trec^Msaer, althoii^h he came bv it loffi 
meana, aa by loan, or by devolution, for he tresMiM ' 
the bounds of hie tnut. Ideas are free; bn^ whiU ft ' 
author confines them to hie study* they are like biida ii 
a cage, which none but he can have a riaht to laLflgr 
foe, till he thinks proper to emancipete thoBB, they a>> 
under his own dominion. It is certain every man fa* 
a right to keep hie own sentimcnla if he jMeaaes: far 
has certainly a rif^t to iudge whether he will makt 
them pi^lic or commit them only to the sight of faa 
friends. In that state, the manuscript ia in every mmat 
hie peculiar property, and no man can take it froti 
him, or make any use of it which be has not authoriaad 
without being guilty of a violation of hie property 
And as evwy author or propnetw (Mf a mannwcript l^i 
a ridit to detennine wlietlier he will publish it w aoi; 
he bsa a right to the first publication, and whoeve* de- 
prives him of that priority is guilty of a muiifaet wxow, 
and the Court have a rignt to stop it." Thoee simple 
words clearly expMSs the grounds upon which lavamed< 
liie right of hia ELoyal Hi^iiees to retain the injunetiom. 
What ie sought to be protected is property, in the hjghi 
est sense of uie term, for it is acquired by creation, ft 
is not Uke property in the vulgar aMise of the w e n^ 
that is, visible, tangible property acquired at an esc^ 
pease of poands, shtllings, and pence, out it is entirely 
the result of the genius, labour, and skill of the indi- 
viduals ereaUng U. Tlie case might be put, wliiflk. is 
not uncommon to Uuoe who have appeared as anthow 
befon tlie woiil, vt to those wlw having taloits imbm 
to make them known only ia the dme of intiwil» 
friends— I allude to autobiography intended only to h% 
seen by the writer's children, or by his relativaej «r 
the case might be put of a poet who desires to write «t 
poem, but making this subeidiaiy to tiie efforts of Ids. 
daily life, developing, however, ^e pn^^ress of aa in- 
dividual mind, amid particular scenery, and who mi^t 
contemplate the bequest of it as property, to be madft 
pubUc after his death — will it be said, that if the Beet 
or autobiographn- sent the mannsnrqpt to be copied 1^ 
a stationer, and a copy were sunsptttuHuly mads^ or 
the document were lost in the street^ and that it vmm 
priBted^theCowtwiUwitblmtditipntoettni} [fi* 



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$1 



IfaM lUU i uJ to tbe Aet far protecting DnmBtio Copy- 
i^l^l, S & 6 Viet. e. 4S, sDcl peiirted oat tbe anskigy H 
bote to thii ease, aad tbm priaeiplM of justfoe iipon 
im oadi omb, tiie pw yor ty -wm pvDt«ot«d. Th« 
t «f AumU v. Smitk (Ifi Sin. 182; 12 Jar. 723) 
rafao cited m beuiw on the quwttw.] Thewta" 
pabtished by Mr. Stnoige wu not a mm enn* 
tkn of the picturee, atatiDg that they had been 
mw^ nti» iij prodoeed by theee wboee Banes weie mrit- 
•nte Ami— it was a caAalogne of what woold appear 
te be sa esisth^ exbibttioD, entitled the *' Koyal 
VielMia a^ Pmice Albert GaUery of Pioturei " Any 
ase seadtnc the catatogoe a oen to i y hence would hrfer 
Ikat thetc had rally been sadi an exhibHten ** by per- 
■^rfeM" itf the royal penonagea, nd that every one 
fsytegU. bad been at liberty to select the fae simile 
mm «C the aatograpfw. If the d^ndanrt conld sne- 
Ond ta dHsolvi]^ the inijimetion, and efltabtiah Ms 
t%fct tte pnUication, it woold rest in htm for 
wmtj -•^ht yeaa. Besldee tUs^ ihe eatalone gare 
l^dMMaad anlfcaatKtf tbe -pietneB from imcaitbe 
had bm naie. la MM tnstance, the 4e- 
ibaltakBD vpen tfaeniselTee to correct the h- 
Ma tbe picture; take, for iafltaace, " Ne. 
n Old Man. Dmim by Priaee Aibert 
ber Majesty. Deoember SOtbj IMO. 
in the date affind by her Hajeaty to 
tUmg. It would Bppeerte hare basn coceoated 
the Queen on ttie 20th January, 1640« which was 
wanths bdbte her Majesty received her first 
BoaeiBtheart from Sir George Hayter. The 
■S' to fellow the figm *!' was accidentally 
4 by the Qaeen; ooneeqaeitdy ftfa work was 
id b^ her Ibjeety on December 20th, as appears 
.** Hew £j tills diffiir fnm the ease of a penon 






had aocen to prtvirte memomi^ or a poritet- 
%Mk, er a dcA, hi wUeh isffiTlduds mignt faava noted 
ftM^dalaaand ammtwecel Waa not Ala aa norfi 
fw pnteetioa ae eny of Hum wfakh had been 
Asl^ h wbidi pro t ee U on had been gmated, as, fbr 
eett^jrie, Ibe Post-office Direetoryt Thi» catidogiR 
fl^k tailb, a Mitory of fhe pmgreas in art by tmw 
ycmmagn. Ko lady or gnrtleman uriio mi^ 
a pofftion of Msnre in literttnn or art can, if 
' nn be diHolred, be eeenre fhMn the viola- 
• rigiits of pmperty. The Trine of property 
of nothing bat mlim. Is It not a dsroga- 
1 Ae vttlae of proper^ tmt it last its priracyt 
some one eatalogned {he pietnres of an artiM, 
' ^ obocrrations on fate p w^r ee s , woidd not that 
by tnjoncHon? The bMatrolest Mlitea 
peraonageB might Indaoe Ham, on the 
M nationl dishcas, to oreKxnm the re- 
whiah they nowfctl to ha*e tfie mdnotlOBs 
r ieiroe how exposed to pttbKe ciHl e ig m. "Were 
eatalogwB of Stowe, FonthiU, and Strawberry 
edd fbr a-wryh^ih prioet Some 
loee a Tcry high pnee: some eo mndK as 
Where woold be the jnstice of Allowing a 
ifintrrely to catalogne the actnal, tengible, and 
1 pn>p er ty of a genUeman or nobtomuit If the 
itomake a ealak^tie were eonceded, Hie right of 
Mlow^ and, of eoatee, the right to cemm)n. 
Awe, V. C— A description might be pub- 
lof an wafinidied phstvre In ata«rtilBtr8'tttid{o, of 
to aaMpoaHien aod gnwphig, vhidi, %llboirt MiHg 
IbdaH^ isiglit rtfeet tbe artM^ raln.l Put the 
dHk4f a jeMQg vtiit MHMth^ %K tfos of Ae p'riMa 
Sy ofland to osdiflntteti hi ^feMnlluUf Hall, 
' wvrita wtn dcoulbed and vritlcAM^ ita such a 
■■ serionriy ta itflorfm iHth his stiMMs. In 
pkea, Mr. Strange has dene thislrlth a perfect 
!of Oe raamwr in lAfleh these copies ««re 
' te fhe MMMid piaee, ft la imnatefM 
tk. «ii «MtiMl,tlwt11iboV 





met is to make a penmiary proAt by fhe exhAMoa. 
Mr. Strange and Mr. Jndge were to participate in Uw 
prsAts from the joint nteoaUUon. It has bem stated, 
that it is possiUe Mr. Strange may hare ima^ned that 
^e eepies had been obtained from some fbmgn poten* 
tate, bat Uie oatalogne is as answer to that; and a 
pnbfisher, a man of boriness, is snppooed, it most be pra- 
samed,tohaTemadeaUneed^falinqntries. Sapposepro- 
perfy is fonnd in possession of a pawnbroker or a deakr 
m nuoine stores, what wonld be tbe feelings of any rea- 
sonable person on being told that such a penon had asked 
noipestionrelatingtothepropertTt Why, it would only 
aggravate the offence. Althon|fn the propertr in the 
paper or card on which the etching was migltt be in the 
party who had pnrehased them, yet how can it 1>e son- 
poeed that a journeyman printer could Mrly have 00- 
tamed poasession of that idiieh was property, namHy, 
the etebings themselves ? About tiie moral features of 
sneh a trmisaction, there can be no question. The 
Court can entertain no doubt that t^e property in the 
etchings was obtained by a hmdi of tmst, against 
which protection can be given In eqnitr. As to As 
diaige of precipitancy in commencing tnese proceed- 
ii^ it was justified by the manner in whi^ the fiKt 
of the intended exhibition came to the knowledge of 
her Majesty's advisers, by a cotalo{|;ne enveloped, vnae- 
eompenled by any veml or written request or tx- 
}danatien. immediately on the receipt of tbe packet, 
a eommanication was made by Mr. White to Mr. 
Stiange's sen, who said bli father was out of town, 
and some delay must take place. Why, this is one <n 
the boldest adventures in the ami ale of coolnes. How 
little have the nartiea caved about the feelinss of those 
whose privacy has been thus invaded, and whose rights 
are about to be violated by a public exhibition. Had 
her fifegcs^ advlsen hesitatM, the mhKhief wouM 
have been done, and then they woidd have been x»- 
proaehed with delay. The present Is preelaely the ease, 
tdthig the whole of the dmHMtaneei together, la 
which those who apprehend a i^rong ought to have 
acted with promptitude. The charge made against t^s 
defendants u not that of stealing, b^t that the etchings 
had been " surreptitioosly obtained." An appeal has 
been made to tbe Court, upon fhe ground that the li- 
berty of the press bad been attacked by the injunction. 
It cerbtfnly u right to protect works wWdi give Im- 
mortaHty to thought ; but when liberty exceeds its 
boundaries, and when matt^ which are intended feor 
privacy, are made pubHc by these who seek to reidlM 
tiie pecuniary advant^;es of a j<dnt speculation, H Is 
neeeamiy ftr the sake of liberty Stsdf to interpose. It 
has been said, that there was a toneh of despotism abotit 
thia injunction. Why, it touches upon notning but (3ie 
ri^n of property — the right which every man has to 
reserve his productions for his own or his friend's use, 
and that, without hfe permissioB, they should not bo 
submitted to the inspectionandgnKeof the whole world. 
Is there not another species of despotism besides tiiat 
iHil<Ai takoi flie form of executioners, great armies, and 
tyrannical decrees? Is there pot a despotism in the 
exercise, the more harsh and offensive mm the wont 
of Bemibility? It is the pfuvince of ftelawto curb 
aad restr^ liberty, that, by moderating it, It may be 
preserved. What is the ffespotism attempted heni 
Why, the true question ts, whether then is to be taj 
private life at allt Whether there Is to be a right' 
OsDtped, on the part of any otte^bo ehoeee to dbtaln pbe- 
seasiott of works it art which hav« been prepared pri- 
vately, and an intended for the social circle, to de- 
scribe and diritieise them, And bring tiiem beibre the 
world ? This is the sort of despotism attempted te be 
metulssd In ^le case befon the Court. It has be«h 
sud that the right is not intended to be exercised. It 
My iwt, bo^rever, 1n vhrAyt poMwssed by parties by 
irtWtt flidi B teneMsIoa ti ninh. tlie qneBthm fan 



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63 



THE JURIST. 



general one. Mr. Strange, by his coanael, said, "Only 
let me have this right esUblished, and you shall see my 
SMOings of loyalty and dnty, and with what grace they 
will operate apoD me," Bat her Majeety may not 
gways have to deal with such loyal subjects. Eveiy 
Xaglish lady i« not so fortunate as to receive that ho- 
SMge which Mr. Strange is so willing to render. In 
what situation is every lady in this country to be 
placed, whose productions in art some Individual may 
think It worth hU while to exhibit ? And although I 
may weU conceive, that there are very few eases, in 
which the productions b;f private individuals, selected 
from the library or drawmgrooro, would become soat- 
toactive, as no doubt these are. to Mr. Strange: yet 
* are many cases, in which other consequences would 
foUow, from sending to a young lady a catalogue of this 
description, and following it by a menace. I will not 
tut that 7" intended in this case, for I cannot 
"diveinto the depth" of Mr. Strange'sfbelings; I cannot 
give a solution of them. If the Court refused to grant 
an injunction in such cases, it would be tantamount to 
a declaration that there shall he no sacred privacy for 
the* works, no matter whether that privacy exists in 
a loftier station, which may make it liiore piecious. in 
consequence of the narrow circle within which domwtic 
enjoyment wn be had amidst the round of public duty. 

**iSr»* «3tists in the humbler and lower rBnic^ 
?L V « ^'If* "^P"'** » privacy for any amatenr ar- 
ttat. If Mr. btrange s proposition be tenable. Itmay be 
well worth the whUe of some persons to print the ca- 
tUogue of the property or the works of any lady of 
fortune, and to send it to her, leaving to her or her 
faends the choice of using any other means than those 
of applying to hiw to vindicate her rights. The ques- 
tion is important for all those whowish toperaervethe 
sanctity oT home. Whether the pnbHcatfon of these 
J .ff""*- aentiments of honour 

md affection felt by the people of tl>is countiy for their 
monaroh, is not the question. Hew has been an inva- 

?™V t- ifP'^^i'^ Pr*™*« property, and a breach of 
trusty whidi justifies the interference of the Court. 

tr, M. Japuij on the same side, observed upon the 
inconsistency of Mr. Strange's statements that >ie had 
iTOken up the type from which this catalogue had been 
KKTi* attempt to dissolve the injunction, 

whidi,in such a state of tilings, conld do him no harm 
"^If^ that it was the defendant's love of 

eo^tutional rights that had made him sn anxious to 
Jtaolve this injunction, the dread of which had made 

• ''<™rf«*» about the 
bberty of the press. Why, the humUnt and neediest 
workmen in this country better know what was doe to 
the poorest woman in England, and would scorn to in- 
^P*^. and note down and make 

public the little mementoes of her domestic life. 

Aium;^ in reply, said that there was no evidence be- 
fore the Court upon which could be grounded the prin- 
ciuU part of the long aignment that had been addressed 
to tte Court, namdfy, that Middlaton was the servant 
<n Mr. Brown. 

•^H^A "•*«^. th** th»t feet ap- 

peared in the affidaviUfiled in support of the motion to 

Mch^ss^i^j^jjjsr'*'^ 

jJ^»^"»v«tiKation, it appeared that the notice was 

The Solicitor Qtneral then argued that these affidavits 
were receivable, notwithstanding the deflacts of the no- 
tice ; but, if not, even then any objection was too late, 
for the defendant's counsel had argued the case himself 
and permitted the plaintiflf's counsel to argue on the 
assumption that all parties admitted that Hiddleton was 
the servant of Brown. 

iZusfe// denied that he had made any such admisdon : 
but, on the contraty, he had all along contended, that 



the injunction bad been granted on the four originil 
affidavits only, and that the motion to dissolve could 
only be made on the same materials. 

Sidiusf Smiihf on the same ade, contended that not 
only were the affidavits not receivable, but tliat the 
amendments of the bill conld not be read in support <^ 
an injunction granted on a case made by it in its 
oriniu state. 

Ruttdl, ia answer to a Question horn the Court, 
he ms content to leave the argamento on this bill ss 
having been made in the other suit tJao. 

Knioht Brucb, V. C— It strikes me, that the mode 
of dealing with the case may be considerably infioeoced 
by the absence of the evidence, upon the admiasioD oi 
which, on all hands, I understood the case to proceed. 
The fact in question appears, however, not to be in 
evidence. It appears that notice has been given of sn 
intention to read affidavits as to that tact. If, howerer, 
in disposing of the case, I shall do so in a manner dif- 
ferent from that which I should have done by reason ol 
the absence of the proof of the fact in question, I sup- 
pose it will be competent to the counsel 6a the plain- 
tiff to proceed in tlM case by an appUcaUon so framed 
as to introduce the Cut. The qoM^oQ may nera 
arise, from the mode in which 1 may di^Kwe of the 
case. In dealing with the case, I wul etuleavoor to 
state, whether, and how fitr, the presence or abamee <rf 
the affidavits as to the &ct in question can properly in- 
fluence my decision. 

Jan. 16, 1849.— Knight Brccb, V. C— On the 20tb 
October last, the day of the commencement of this suit, 
the plaintiff obtained, upon affidavits, without noUce, 
an injunction against one of the defendants, a publidtor ' 
in London, to this effect — ** to restrain him, his agents, 
servants, and workmen, from exhibiting the gallery or 
collection of etchings in the bill mentioned, or any of 
such etchings; or from making, or permitting to be 
made, any engravings or copies of the sam^ or any nS 
them ; and from in any manner publishing the sime, 
or any of them ; or frx>m parting with or (Usposing of 
the same, or any of them ; and from selling or in any 
manner publishing, and from printing, the descriptive 
catalogue in tlie pliuntifrs bill mentioned, or any work 
being or purporting to be a catalogue of the said etdi- 
inga, until -the defendant shall have fully answered the 
bill, or this Court should make order to the contrary." 
The bill having been subsequently amended by adding 
defendants and otherwise, more affidavits were after- 
wards filed, on the 6th November, with the view, ss I 
collect, of obtaining against one oif the added defendant^ 
Mr. Jasper Tomsett Judge, who has been styled at the 
Bar an author, an injunction rimilar to that which had 
been obt^ned in the month of October against the pub- 
lisher. Such injunction was, I believe, on the same 
6th November, granted, and Is still In force, (gainst 
Mr. Jasper Tomsett Judge. By it, however, the case 
of the publisher restrained by the injunction of October 
has been treated on each side as not affected, and I so 
treat it now. In December the puldisher filed his an- 
swer, and gave notice of motion, which was argued 
before me previously to Christmas, and of which I nave 
now to dispose. It seeks a partial dissolution of the 
injunction obtained in October, in these terms — *' That 
the injunction awarded in this suit against the defend- 
ant (whom I have mentioned), whereby he, his agent% 
servants, and workmen, were strictly enjoined and re- 
strained from exhibitiiw the gallery or collection of 
etchings in the bill mentioned, or any of sucbetchii^; 
or from making, or permitUng to be made, any engnr- 




rom selling or in any manner pnblishuu^ 
and firora rainting, the descriptive catalogne in the bOl 
mentione<^ or any work being or pupoiting to be • 



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T H E J 



oateloene of the said etchings, antilthe said defendant 
sboald fiillr answer the complainant's biH, or this 
Covrt thonid malce order to the contrary," may be 
iTwitlinl, 90 far as such injnnction restTsinB ** the de- 
ftiiiUu^ his agents, servants^ or worl^men, from eelliog 
or in may mmatT {niUishin^, and from printing, the 
duutptiTC ctfak^e in tbe bill mentioned, or any work 
l^u^ar pnportin^ to be a catalwoe of the siud etch- 
!■(;•?* AitMtantiBl portion of tbe injanction thus, it 
M pft MiB, was left onqnestioned. But the leading fetcts 
far pramt consideration, taking them only from the 
tamr afidarits filed in October^ the catalogue and the 
aafwcr— tbcae six documents, forming the evidence upon 
vhich the pal^8heT*s counsel successfaUy contended 
that the motMO should be solely argued, may, 1 think, 
be stated thn : — A lady aod gentleman, the latter being 
iSut pihwitiff, having, with a view, no doubt, to rational 
mad Jfl tawlic amnaement, learned the art of etching, 
cxaortcdfram time to time, for their private use, several 
varic* «f this dcactiption, some from drawings by them- 
adrc^ ana fmn otha worka of art In their poisetsion. 
Thcj had a pnsa also at their reridence, partly by 
Mesas nCvUcli, and partly by employing a printer in 
thaeonkzy, they took impressions for their own use 
froatte aktcs. The plates themselves remained in 
the tw^Mj af the pluntifF or of his consort, or in the 
emtadj aerwwHialiy, or rather temporarily, of Mr. 
Aon, the [ninter, for the purpose aoove mentioned. 
A &w Hat impreasions were given by the plaintiff or 
hm caasDrt im annually, but not frequently, to some of 
tbair frioids. It is probable or certain, that of some of 
the iBpreasioiis copies were never given. In this state 
af rirrwisfanrm it was, that, in October, 1 848, appeared 
dwHsdvctiora, called in the bill and injanction, and 
offi^ itaeli^ ** a descriptive catal^ue," being a pam- 
fUrt «f thirty pages or more, printed by Uie deiend- 
at, the pvblitticr, relating to the etchings I have men- 
tio aed, eoataining a list of the impresNons, that is, from 
ntv-teee to nx^-fonr differmt plates, etched partly 
by w fUntiff and partly by his consort. This list 
cnpriM a deaeri^iim of the worV^ with various re- 
wmna apim them, including verv energetic commenda- 
tiana, maA of these not a few. ^rbe correctness of the 
fiat, howvxver obtained, seems, in point of enumera- 
tiob sad cabjccta of the plates, to be unquestion- 
ihfe, w^ohtthe partictilars and observations added may 
he inieiied to be as not wholly accurate, and not 
■hflfly Baeeamte. Tbe punphlet came forth in a 
which, as well as on the title-page, 
rtpiiiiwatoba ** A. Dcsoriptive Catalogueof a Gal- 
lery afElch^s,** by the name and the rank of the 
iteaiirt aaasnt nd himself. The cover was em- 
HUBoed with an impression of the lady's coat of 
aad UBoanced, that every purchaser of the 
JM^Uet woold be presented **by permission** — for 
as h ays — with a fiw nmile of tne auto^ph of 
cithu, e^itaved from the original, the selection being 
left te the porchaaer, and that the price is M, An in- 
(ndactoay caaay or narrative, premded or beaded by 
mother repreaentatton of the coat of arms, states the 
ccatcsCsof the work to be *' a collection of etchings, 
ptrfaedj gatqae, executed by ** tbe plaintiff's consort 
wA hTmself, ** which the proprietor" (not naminghim] 
*hM been induced to sabmit to pnblie exhibmoD. 
AAcr Mass aaeodotes^ and some selections from the 
Mwi|ia|iMa of the year 1840, and some perspicuously 
agnmA eompliments, it dedaresthe whole seleetion — 
fhit ti, the «zty-three or sixty-four etchings or impres- 
4 am - to be ** now aabmitted to the inspection of tbe 
vahB^ mder the firm peisnadon, and in the full eonfi- 
•eaee, that a nomeroas class of persons" would ** highly 
iUr and daly wpreeiate them," and so on. It con- 
tW etwith an intimation, not that the jtamphlet, or 
the sf yajtiun id the means of composing it, would be 
Mtoo^ hit that the Abatalnfaig frrai nwh a prooeed- 



U R I S T, 53 



ing would be wone than a theft ; this is, however, in 
poetry. Tbe defendant the publisher printed, it seema, 
nfty-one copies of the pamphlet ; and in the second week 
of October he and the defendant the author — for the let- 
ter of the 1 st November, and another part of the answer, 
shew it to have been the act of both— cansed one of the 
copies to be delivered in an envelope (I believe a blank 
envelope) addressed to the consort of the plaintiff, at 
their residence. This was the fint notice of the pnbU- 
cation — the first notice of a proceetling or scheme of any 
such kind, as it declared, which the plaintiff's consort 
or himself received. No one has suggested, or seemed 
to suppose, that the exhibition thus remarkably an* 
nounced, or that the publishing or printing or com- 
posing of any such catalogue or production as the 
pamphlet, or that any publicity on the subject of the 
etchings or impressions, was ever sanctioned or intended 
by either. The plaintiff's affidavit of October states, 
that, although copies of some few of the etchings had 
been given occarionally, but very rarely, to some of the 
personal fiiends of hie consort, one to one Mend and 
one to another,*' yet, speaking positively as to himself, 
and to the heat of his belief for his consort, " no such 
collection as that advertised for exhibition was ever 
given by them or either of them, or by their or either 
of their permission ; and that he believes, and has do 
doubt, that no such collection could have been fbrraed 
except by impressions surreptitiously obtained, and that 
it has been so formed ; and that he believes that such 
catalogue, and the descriptive and other remarks therein 
contained, could not have been compiled or made except 
bv means of the possession of the several impressions of 
the said etchings so surreptitiously obtained.*' Upon 
this and the three contemporaneous affidavits, I had no 
hedtation in granting the injunction in October, nnlesB 
as to the catuogne; and, as to that, the better couzae 
seemed to be, to allow the Injonetion to extend to that, 
uponreceivingan undertaking from the plaintiff, and also 
from his solicitor, to abide by any order as to damages 
that the Court might thereafter make. The answer of 
the publisher states his case thus: — He saj's, he knomi 
nothing personally of the truth of the statements in 
said bin mentioned relative to the making the drawings, 
etchings, and Impressions in said plaintiff's Mil in that 
behalf respectively mentioned, but has no reason to 
doubt the truth of such statements; and he believes it 
to be true that the plaintiff's consort and the jilaintlff, 
or one of them, have or has made such drawings as in 
the said plaintiff's bill mentioned, and that they have 
made impressions thereof. Soys, he does not know, and 
cannot set forth as to bis belief or otherwise, whether 
such impressions hare been made fbr their own use, or 
how otherwise, or whether in such manner or under 
such circumstances of privacy as in said plaintiff's bill 
in that behalf mentioned, or now otherwise. Denies it 
it to be true, that he has, or to the best of his knowledsra 
and belief that Jasper Tomsett Judge and J. A. F. 
Judge, two of the other defendants to said plaintiff's 
bill, or either of them, have or has, any confederates in 
respect of the matters in said bill mentioned, or any of 
them. Denies it to be true, that defendant has in any 
manner, either surreptitiously or otherwise, obtained or 
poflsessed himself of any such impresuons, or of any 
impresrions of sidd etcbinM^ or any of them, or co^ss 
of snch tmpresrions. BeRevea it to be true, that said 
J. T. Judge obtained certain impressions of etchings made 
by pl^ntiff *s consort and plaintiff, from a person of the 
name of Hiddleton, of whom he purchased tne same ; and 
that the Impressions so obtained by him are the im< 
pressions set forth or referred to in the catalogue in 
said plaintiff's bill mentioned. And defendant says, 
that one, and only one, of such impressions was sent to 
defendant for the purpose of being mounted ; and, save 
as aforesaid, defmoant says he does not know, and can- 
not set fortn, aa to Us belief or otherwise^ whether sud 



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54 



THE JURIST. 



otheT defendants, Jasper Tomsett Jadge J. A, F. 
judge, or either or which of them, or any persona or per- 
aosi, OBTe or hasj in any manner, either surreptitiously 
or otherwise, or inwliat manner in particular, obtained 
or poeaessed themselves or himself of any of such im- 
pressions, or any impressions of the said etchings, or of 
any or which of them, or copies of such impressions. 
Denies it to be true, that any of the impreBsioos or 
copies of such impressions of such etchings in said 
plaintiff's bill mentioned, or any of them, except the 
one which defendant has herembefore mentioned, hare 
in uy manner been obtuned by, or at any time come to, 
or been, ornow are, in the postesnon or power of defend- 
uit. Says, that, to the best of his knowledge and be- 
lief, no impresuona or copies of such impressions of m6h 
etchings, or any of them, have in any manner been ob- 
tained by, or at an^ timecome to, orbeenin theposses- 
aion or power of, satd defendant J. A. F. Judge ; and that 
a list Of all the impressions of such etchings, or any of 
them, which have m any manner been obtained by, or 
at any time come to, or been in the possession of. said 
defendant J, T. Ju^e, are set forth in said catuogue 
mentioned in said plaintiff's bilL And, save as afore- 
said, defendant says he cannot set forth a list or sche- 
dule of all the impressions, and all the copies of such 
im^fsrioos, of such etchings which had in any manner 
been jobtdned by, or at any time come to, or been 
in the possearionor powar of, said other defendants, or 
ather of them, or any other persons or person whom- 
soever, to his, defendant's, knowledge or belief. Be- 
Ueves it to be true, that of said defendants, J. T. Judge 
alone has been enabled to form, and has alone formra, 
a collection of such etchings. Says, that, about the 
end of August, 1848, said defendant J. T. Judge called 
upon defendant, and in the course of converaatiim 
told defendant that he had in his possession certain 
impressions from etchings done by plaintiff's consort 
ana plaintiff; and that, about the middle of Septem- 
ber last, said defendant J. T. Judge shewed such impras- 
dons, or several of them, to d^endaot; and said de- 
fendant J. T. Jud^ proposed to enter into an ar- 
iHOgement with defendant to exhibit said impreasions, 
provided there was not the sluihtest oljectiou on the 
part of plaintiff's consort and plaintiff ; and it was 
then arranged between defendant and sud defendant 
J. T. Judge, subject to the aforesaid proviso, that de- 
fendant sliould join with said defendant J. T. Judge 
in an exhibition of the aforesaid impresuons at toe 
Egyptian Hall, or at some other public institution of 
«qual respectability; and that defendant should ad- 
vance the funds ; and that defendant and said defendant 
J. T. Judge should equally participate in the profits of 
SDch exhibition. Says, that defendant did not believe 
that the aforesaid impressions had been improperly ob- 
iuned by said J. T. Judge, or by any o^er person, or 
that the same had come to the hands ai aid J. T. 
Judge in an irregular manner; but, on the contrary, 
defendant believed that the said impreauona were the 
Monerty said J. T. Judse, and that the same had 
nirly, honestly, and regularly come into his poascsMon. 
SaSBf that, after such last- mentioned interview, said 
defendant J. T. Judge took away said impressions with 
him; and that the same, except the aforesaid, are im- 
pressions as aforesaid, which are not now in defendant's 
poas em ion or power, and never have been in the possession 
or power of defendant ; nor has defendant seen them, 
except on such last-mentioned occawon. Savs, that, 
afler such last-mentioned interview between defendant 
and said defendant J. T. Judge, said defendant J. T. 
Judge wrote a descriptive catalogue of said impressions, 
beiqg the cataloaue m said plamtiff*s bill and herein- 
iH&m menlioned. Says, that said eatalogae was printed 
by defendant and fiity-ooe oo^ea, ana no more, were 
■truck ol^ and the type was then broken up. Sayt, 
that ootun ganenl ioqniriet were mad« by jwfinwfant 



and said other defendant J. X. Judge, as to the ei 
penses of a room in which the said etchings might b 
exhibited ; and the frames for the etchings were ordere 
and made; but no farther steps were taken by tb! 
defeudant, or, to his knowledge and belief, by the othi 
defendants, or either of them, in furtherance of the sai 
exhibition so proposed as aforesaid, except that tb 
defendant believes that the said defendant J. T. Judj 
wrote, and sent to a Berkshire paper, an article < 
notice relating to the said impresdona, as heruna& 
more parUcuMtrly menUoned. Belierea it to be trai 
that, on the 9th October, 1848, said d^andant J. 1 
Judge, with a view of bringing the subject of the sai 
exhibition to the notice of the plaintiff's consort an 
plaintiff, and of ascertaining whether the said exhib 
tion would be objected to by pluntiff'a consort an 
plaintiff, sent copies of tlie aforesaid catalogue to pl&ii 
Uff'a consort and [daintifi^ and to " various other pa 
sons mentioned, who are connected by femily so 
service with the plaintiff and his consort ;" sid a 
such copies were sent under cover in Ae usual waj 
Says, that said catalogue has never been published, o 
sold, or exposed for sale. Saya, that, to tbe beet (tf hi 
knowledge and belief, all the rest of aaid fifty -on 
copies, excepting one given away by the wbH defM 
ant J. T. Juto, now are and remain in the hands < 
defendant and of lald J. T. Judge, or of their Isgt 
advisers for the pnipoeBs of theee prooeedin^. San 
that, on the 13th October, 1848, defendant left Laadoy 
for Bamstey, in tlw county of York, for the benefii o; 
his health, and defendant did not return to Loodof: 
unUl late in the evening of Friday, the 27th October 
1848. Says, that, on the 18th October, 1848, wbei 
staying at Bamsky aforesaid, defendant received i 
letter from his son, dated the 17th October, 18^ 
communicating to the defendant tliat a gentleman, wot 
stated himself to be Mr. White, the solicitor to m 
plaintiff, had called upon him on behalf of plMutuTi 
consort and plaintiff, and expressed their dis^tpnbatki 
of the then contemplated exhibition. Says, that tbi! 
was the first intimation that he received that saul con- 
templated exhibition waa disapproved of hy plaintiff^! 
consort and plaintiff. Says, that, until suoh intimatuii; 
he had no reason to beUere, and did not believe, VM 
the same would be objected to by, or offenaiTe to, 
plaintiff^s consort uid pUintiff. Ssiya, that, upon be- 
coming aware that said exhibition was diaspproved ot 
by pluutiff*s consoH and phuntiff, defendant, » 
accordance with the terms upon which alone defendsnt 
entered into the arrangement for the aforesaid esbibi- 




respect to said exhibition, uid to alandmi all of 
any exhibition of said etchinge whatever; and damid- 
ant has not, unoe be rooeivad such inthoaaUoa «> ubre- 
said firam said Mr. White, Uken any fbrlher it^ 
whatever in promoting said exhibiUon; but » *^ 
from that time, has wholly and altogether abaadoitsd 
the same. Denies it to be true, that he doss iatoMi or 
threat«i to make a public exhibition of said etcA^; 
and defendant does not know, and cannet set f<^^jf 
to his belief or otherwise, whether said otherdefcwaiW) 
or either of th«n, do intend or threaten to make a 
public exhibition of aaid etchings. Saya, he new 
tended or threatened to make any engraving or co^ 
of such etehings, or of any of them, or in any msoMT 
to publish the same, or any of them, without the pe^ 
mission of plaintiff's coneort and plaintiff. SaM tuu 
it iias been the anxious wish of defendant 
received dw cemnmnication aforesaid, made ^iX f^Jf 
Mr. White as afoxenid, as a loyal and datifal labj^ 
in every re^>ect to comply with the wishes of 
consort, not only by abandoning tlw ■ htn u in nuj^ 
tioa, bnt also dsliTaia^ up mofj oopr <* ""^ 



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THE JURIST. 



55 



artal^m m kii powioa or power, aa p}«iii4iff*s 

bbkM tfrect, and abo 1>j gWing bis aonmiwe lliat 
W wmH ■rilhrr Mctioii vot b« aaitty lo exhi- 
Wfas of mSA tMumf^ or to Ibe pnbBeMon or cicen- 
ktfaa tf Ac Slid catakifiw; um dafimdsiit^ Msg at 
Ife mum ^ma donnm to rmlicate Us disfMte bi tin 
of jUnlHPb eeoaort md pluBtiff, md of the ftl- 
kn^-^Ajtck tit doftndsntf fion tlw MMtniDiifl attnnptod 
\e cHt ifoa H bj- the otaCeiDfliito m mid p!fllnttff*8 
MiUiMtiiT Ub soliettOT, Mr. W. H. Snfth, to com- 
tiaiui tt wiih Mad Kr. White, the ^amtiff's adiettor. 
Smy%t he has heoi isfimned, and bwevea it to he tnie, 
Aak HidKr. W. H. Smith, as defendants si^eitor, wrote 
nd ant a trtte to <he sud Mr. White, dated the Ist 
Km i m Mi, IMS, whidi asys^ ** I write to 70a this letter, 
I h^ at tfie evtaet to apprise yoa ia without 
B to faa iBtcTCst^ and with the nndentandiiit', 
^lattc evtnt wf its not answering ito eridentoh- 
>c^tUiMlB>iB Uk'be ngardedhyyov as not harfng 
mem watfta.* tbma comes tihe rendne of At letter, 
hy tks wtfn anica af eonnranieatiow, of 



vhaA it was &e he g im ii ny, between the sofidtors, all 
■< tW fcTa WI a aorTBs p oodeneenot nngnhr in this, 
ftiftfta 'Wai^sit ef the fcttcta do not saj most; or m 
% mdsd in notbiw. Tb«e may he a stage 
si wUeli posriblj these letten ini^ de- 
" Oj but, for erejy present purpose, they 
I tberefere pass thcra over. On the 



the afoneaid eleren copies of soefe catalogne may he < 
atdered pahlieation. Admits it to be true, that the tHls- 
psge or corer thereof is as in aid plaintiff*s bill la 
that behalf nentfeoed, except that m the aaid pMn 
tiff^ bin the wor^ "spedn alond* are written* la- 
stead of '•^eaks lond,* as mfeted in said title-p^ 
Adndts it to he true that snd wofk does oont^ sock 
passages, snd Is of sndt character and purport, m in saM 
plaintMPs bill in that behalf mentioned, set forth, and 
aeecribed. Says, that defendant only saw said imptea- 
sions of said ett^ngs once, as is hereinbefore men- 
tioned, when same were in pcseeadon of said defatdant 
J. T. Judge, and said one nnpreMion, which was sent 
to be motmted, but has since been retnmed. Says, he 
has never had said impressions or copies thereof, except 
the afores^d one inipre sri on, or any of snch iraprenion^ 
in his poes c B oi on, custody, or power. Ssys, that sven 
defendant J. T. Jndge and defendant were the imfy 
penons partim to or interested In the pterfondy ii^ 
tended pubHeation or sale ef sidd descriptive catdma. 
Says, that defendant reeeired Instmctions or dinenana 
for the printiiu: or pnblidiing of sud eatable from mid 
defendant J. T. Jo^ on the tnd October, tMft, and 
for snch pim>ese said defendant J. T. Judge fiirmdted 
defandant with a manuscript of s^d catalogue. Sajra, 
that he printed snch oAalogne in pnimianee of and as 
part of the agreement herein mentioned betwees de- 
fendant and said defondsnt J. T. Judge, as to the ex- 
Am of the conreqwndenee oeevr theee pas- | penses and profits of the provisionally proposed e^ittti- 
-"Saya, tint he has not one of said iin])Tes8tons j tion of saidimpmnons of said etehings, as hereinbefbre 





or power J that, rince he received the 
At exhihttimi of said tmpresrions was 
to plaintSfPs consort and nlidntifr, he 
I wftsOy Jianihrned aR idea of such e^iMtion ; and 
AAaAmt hsd wewT taken any irtepo witii a view of 
Mtey aia e iBM ar eoines f^m said etchings, or any 
tflhim. be is alt<^etber unconscious of having 

^■e s a y tMng in re^te et to the aforesrid exhibition and 
oAdsgm eaa S i ary to law, or of having acted otherwise 
AsassWeHBCs a foyal and dntifol snbject ofplaintifT- 
■sldifiBtet is boni morally and ImHy free from all 
and eeerf &e inmrtations of wronKOoing conteined in 
■aii pUraffN hOl ; and defendant has b^n advised and 
, Aat, aa a matter of strict right, he is entitled to 
[csrcalate tbe aforesaid eatelogne, and that 
~ aa no Iwal r^t to restrain snch pnbli- 
that if plaiittHrs legal advisets are of 
wy have any matter of complaint against 
, srtiMt defondant baa in any mamwr hem a 
WMgfal deer to thi ng the aforesrid exhlMtion and ca- 
tt in i t , or t^tr of tbem, defendant is read^ and 
wflfiag to Wtaid and jiu^y bis conduct, either in this 
SHi orhrfbavs^ proper legal tribunal ; and defisndant 
AevaslaBektoavoid the most searching inquiry touch- 
Ajptbe^me. However, defendant s^s, that, whatever 
' the hg^ advisers of ptuntiff may take, or what- 
be the result of this suit, defendant will 
ready and willing, as a loyal and dnttfnl 
m every respect, to consult the feeRngs and 
I cf fl«giiu*f , and to comply with Aem in respect 
hi wM catahigne. Saya, he is willing and hereby ofTers 
Is h ug e wbaAaver legal righto he may have to pnUiA 
aril cririegBc, and to absndon the pnbllcatloa of said 
iBlalifm, and to give up all ee^cs thereof In his pos- 
Miaa «r power, npon said pwntilF undertsfclng to 
l^ia tw suit against him, and the information 
flsd nSmtiag to tbe matten herein, and to indemnify 
Ik iH-ifte e xpm a es be has faicnned by the institution 
«r ma vntxtS^ua. Says, that said defendant J. T. 

wrote, or prepared snch work or 
intifF*s bill in that behaH men- 
ae baa been printed by defendant ; 
■dflj^defoodmit carries on bnmieiB as in said plain- 
d; hut dtefendaat denies it to betiue, 
I nai been pnUiriw^ exeept so for as 





more partfcnlarly mentieiwd; and defendant was not 
employed to printsatd catalogue by toy person, nor hv 
defendant given cretKt nor does be look for payment far 
the same mm any penons or person. Says, tliat de- 
fhidant first became eonneeted vrith such exMbl- 
tion so provisbnally intended as aforesaid, and irith 
such provisionally intended publication^ in the man- 
ner and under the circumstances hereinbefore mra- 
tioned ; and defendant expected' to l>e paid and remu- 
nerated fhon such printing and publication, and tbe 
expenses incident thereto, out of the profits of tbe 
afi^reaaid proposed exhibition, in case same had not been 
objected to by plaintifTs consort and plaintiff; bnt,in- 
asmnch as defendant has abandoned such exhibition, he 
does not expect to be paid or remunerated for snch 
printing and idleged puoncation, and the expenses in- 
cident theteto, my person.^ And, after stating 
several othw matters, he says, *■ That bis son, WiWan 
Strange, jun., on fjie 17th Oetober last, wrote a letter 
to defenmt of that date, and addressed to defendant 
at Rtmslev afbresald, where defendant was then stay- 
ing ; and that snch letter was received by defendant on 
the 18th October last; and said tetter informed def^d- 
ant, that Mr. White and another gentleman had called 
St the place of businen of defendant between four and 
five o'clock in the afternoon of said I7th October; and 
the letter stated, that what passed between Mr, Whito 
and defendant's said son, William Strange, jun., was to 
the following purport or effect ; — The said Mr. White 
prodnced a catalogne of tiie aforesaid intended exhibi- 
tion, and asked said William Stranee, jun., if he had 
any fbr sale, to which the mid William Stnng^ Jan., 
answered, that he did not faiow that wa had, but 
that he would communicate with bis fother, (meantiy 
defendant), who was out of town ; but if he, Mr. White, 
would leave his address, he, the said William Strange, 
jun., would send to him. The said Mr. White, fimfing 
that he was addresring defendant's son. sud that he 
wished to speak with him, and said William Strange, 
inn., asked the said Mr. White and tbe other gentleman 
mto defendant's conn^ff-house, and they went m ac- 
cordingly with said Wlniam Strange, jnn.; ssid Kr. 
White then told said WHlfam Strange, jnn., that the 
said Mr. White came from plaintifTs consort and pUn- 
tUF, lant the oiyogne he had wHh him had bees 



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THE JUBIST. 



iToneht under their especial notic^ and that they 
higl^ disapproved of any such exhibiUon; in &ct, he 
hM Men instructed by Uie proper authoiiUea to file a 
bill against defendant for beine the printer of the cata- 
logue, for that the etchings, &c. that were mentioned 
in the catalogue had been obtained wroDgfuily ; and 
said William Strange, jun^ stated, that he woold eom- 
manieate with defenduit; and sud Mr. White iidd he 
would wait the answer of the defendant. Says, that at 
the time afoiesiUd defendant leeeived sneh l»t-men- 
tioned letter he was suffering from illnes^ and, in fact, 
defendant has not been able to attend, and has not at- 
tended, to buuness unce that time. Says, that no time 
was menUoned in such letter within which an answer 
was required from defendant. Says, that, in answer to 
such letter, defendant wrote to his son, William Strange, 
Jan., to say, if any one called again, defendant would 
be in town shortly." These are the only passages that 
I think it necessary now to read for the purpose of 
doing justice to either party, as to the mode in which 
the defendant states his case. Now, this is an answer 
difficult, I think, or unpos^ble to read without being 
peranaded, that if the perstm whose answer it is Aia, 
with a Mt meaning, what ha says he did, he acted in a 
ver^ extraordinarv manner indeed ; that he being by 
busmess a publisher, by rendence a Londoner, and of 
an age so mature, as from the answer appears, that 
he should have had the intentions which he ascribes 
to himself; that he should, nevertheless, print and 
deal with the catalogue or pamphlet as he did with- 
out any previous or accompanying communication with 
the plaintiff or his consort, or with any servant of 
the plaintiff or his consort ; moreover, that he should 
ever have done so without obtaining, or endeavouring 
to obtain, information as to tlie origin or knowledge 
of Uiddleton's possession or Jasper Tomsett Judge^s 
title; tliat he should also have printed fifty-one copies, 
and only fifly-one copies, and then broken up the type, 
(this last fact not being represented as having taken 
place after the suit or after any remonstrance), does 
seem to me a combination of circumstances that no man 
conld hear stated without surprise. I confess, that, not 
attributing any weight to the omission or reservation of 
the place of exhibition, the hours and price of admit- 
tance, not forgetting ttiat overt acts are not always sure 
guides to the interpretation or discovery of thought, 
or ttiat a certiun decree — indeed, a very considerable 
d^ree— of attention is due to the answer, the facts not 
diluted by the defendant, whose answer it is, would, 
but for what that answer has sworn as to his intention, 
have rendered it in my mind, to say the least, a veiy 
probable conjecture, that he nerer imagined a public 
exhibition of the impressions to be rationally possible, 
or printed or dealt with the catalogue forauy otner pur- 
pose than that of being, in common language, bought off. 
That this was so, I do not of course say ; nor is it neces- 
sary to state, that, if I had now to try such an issue, with 
or without the answer before me, it pro^bly would be 
m^ concluuon. Whatever opinion ougbt to be formed 
01 his conduct, however, it is, I think, a proper and 
correct inference for every present purpose, from the 
materials before me on this motion, tliat the person 
called Middleton in the answer (b^ whatever process or 
means that individual had obtained the impressions 
acquired bv J. T. Judge) obl^ed them wrongfully 
as sgainst tne pluntiff*8 consort and the plaintiff ; that 
J. T. Judge did not nin any better title than Middle- 
i<m to them; and that the defendant the publisher 
^ined no better title than J. T. Judge. This I say 
mdependently of the circumstance that the injunction 
of October is sought to be dissolved only to the partial 
extent already noticed, and without regarding the state 
of the case as to the last-mentioned person. Never- 
theless, upon the answer, upon the four affidavits of 
October, and the publislwr's catidogue, the publisher's 



counsel contended, that the injunction ought so far to 
be dissolved, insisting, that the portion of it wluch thev 
impeach is not supported by an^ ground of title whi^ 
a Court of justice can recognise or deal with. They 
contended, in substance, that, so far, the plaintiff com- 
plmns of an offence not against law^at agmnst man- 
ners. With reference to thAt, Ur. BnneU remarked, 
In effect, (and I agree with Um), that the order and 
well-bdng of life «pend often graatly upon things not 
within the cognisance of law, and cannot be. In a great 
many instances, protected or vindicated by laws. It 
was asserted by a great orator and writer of the Isat 
generation, and perhaps truly, that manners are oi 
more importance than laws, as giving their whole form 
and colour to our lives. Still, however, some breaches 
of good manners are breaches of law also. There if 
no difficulty here, however, as to the former. Tb( 
question here is as to the latter. The defendant'! 
counsel say, that a man acquiring knowledge of an- 
other man's property without his consent^ is not~ 
by any rule or principle which a Court of justice ess 
apply, however secretly that other man may have kmt 
or endeavoured to keep his property— forbidden, win*, 
out consent, to oommonicate or publish that knowledn 
to the world— to infi>rm the world what the i>ropertyl% 
or to describe it publicly, whether orally or in print oi 
writing. I claim, Iiowever, leave to doubt whether— 
as to property of a private nature, which the omier, 
without iid'ringing on the rights of any other, does; 
retain in a state of privacy — it is certain, that a person, 
who, without the owners consent, express or implied, 
acquires a knowledge of it, can lawfully avail himself of 
such knowledge so acijnired, and publish, without his 
concurrence, a description of the property t It *• 
bably true that such apublication may be in a matter, or 
relate to property of a kind rendering a question ooneon- 
ing Uie lawnilness of the act too slight to deserve atten- 
tion. I can conceive cases, however, in which an act of 
the sort may be so circumstanced, or relate to f^V^f 
of such a kind, that the matter may wdj^huly s»ci 
the owner's interest or feelings, or boUi. For instance, 
the nature and intention of the unfinished work of an ar- 
tist, if prematurely made known to the worid, might be 
painful and deeply prejudicial ; nor would it be diffi- 
cult to suggest other examples. I mav here, peihap^ 
remark in passing, that there are several offences ag^inrt 
propriety and morals, which, although causing^ nwwt 
serious discomfort, and pain, and affliction to iodividnsl^ 
the law refuses to treat as actionable, unless these of- 
fences have occasioned some reeogmsoUe damage of s 
particular kind, which it dedgnatcs " 8pe<ual damage. 
But when they have been done, the law pennits them 
to be brought into litigation, and to be redressed civuiy, 
to an extent proportionate to substantial justice; sn^ 
therefore, freauently beyond fecial dama^ 
alone can enaUe the party to take any proceedings. Tae 
plaintiff's counsel, however, contend, that theptftofihe 
injunction questioned here prohibits only that which u 
orwould be theuse by thedefendant of the plaintiff'spi^ 
perty, for the purpose of preventing pecuniary gfio to 
the defendant, orsome other purposeofhisown, without 
the pluntiff 's consent. And this view of the matter, it 
correct, may not be without importance. It was Wg" 
gested, that, to publish a catalogue at a '^^^^\ 
gems, coins, antiquities, or other curiosities, 
his consent, would be to make use of his proiuny 
without his consent: and it ia tm^ certunly, that s 
proceeding of that kind 'might not only as much em- 
bitter one coUector'a life as it would please and flatta 
another— it is only an ideal calamity — but the owBtf 
miglit be damaged in the most vulgar sense, for saw 
catalogues are much sought after, and obtain substanusi 
prices. These are not merely examples of p^ ^ud in- 
jury to mere sentiment; tbey may be that and som^ 
thing else besides. But, as I just now said, and as we su 



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57 



fcaow, pain ufiicUd, in fwA cf Mittiment and imagi- 
■itiiM^ maotahnijBdinmrdadin eoortaof jwtiM. I 
aDade bow to cmm, of wnkh tometiniefl tboae of ca* 
hniB}' an iiwtucca, and as an tamajio wnMwlMt dif- 
fmat to those of U e ^iaM on propcrtv, the damage 
Mie d bj whidi is m amall as icaioefy to be appre- 
caaUa, sad mn compwwible amply bj the anulleet coin, 
yek, nWn amaapamU b j expTeesions of malignity, in- 
■ai»ac»,afcoat, repioach, which by themsdvesconld 
Bsibe madelfaenibjeci of an action, maybe considered 
in a sait bt tra^iaa as swelling the damages to a heary 
VMfmt. So, in a court of equity, I a|ipTehend, if a 
WTOBgfbl act is done or threatened, m mpect of 
whien into^oBtion by iniunction will take efiect, the 
£scntian with which a Court of equity might act or 
dtdine to act probably be inSoeneed by consi- 

fcisiioas ast auffioent d themselves to wanaut judi- 
dti ioleritaflBee; war do I suppose that Iiord Etdon, 
xa tke emt d Gtt t. Pritckard, (2 Swanst. 413), 
a^ ckgwbcre, meant to lay down a different rule. 
Tbe snJogy, or mppoeed analogy, to the present 
esse, upon which tbe plaintiff's counsel appeared 
Mbly to idy, was that of manuscripts. And, as the 
\Km the Tarioos authorities on the subject of an- 
gnbliibcd sRtii^ were canvassed during the argument 
at the Bn, it My not be quite a waste of time to pause 
awUle 1^ tfaal particular subject. The decision of 
thtHweef LcodA in Domaldaon v. ButeU (4 Burr. 
HK) m Mt inconsistent with the answers of tbe roajo- 
ntjr af the js^ce to the first question pnt to them in 
dw easi^ nandy, whether, at common law, an au- 
ftK flf aay book or literary compodtioi had the sole 
gf fint piinting and pnbliahing tlie same for sale, 
tad a^bt bring an action against any pmon who 
Hiated,imhHshw, nad sold tiie same without his eon- 
■Btt 71k answer of the minority of the judges was 
in the sBrmatiTt, for reuMia vhien, I believe, are ge- 
mUf, snd eren unirersally, M^raed to be correct. 
Tbm m sune earlier, as there nave been later, au- 
tbntiatothc same effect. In Tbason r. Walker^ de- 
cided IB 1752, the point seems to be treated as clear. 
hori Hsrdwicke, in a report of it given by Mr. Swan- 
da, (3 Svanet. 680), says, " It is immaterial whether 
the qaes^on arises Mi letters-patent or eeceral pro- 
feifcl— both are to conver a right or efiiim. I will 
tet there ia no determination of the general 
pMl CssK ef |drmting w^m from nnpnUishea books 
ipMieaKBp to the present case; they were never 
■sdi psbliet jaris, but are as much the author's as aoy- 
ttarelse in his doaet. Such are tlie cases of Mr. Webb, 
Ht.Fanertcrp and Dr. Burnett's Treatise *De SUtu 
VoitaNma,* tn Lord Macclesfield's time. The strongest 
tUi^ is vbai is said b^ the judges in Swinour'* cose, 
•i^uegM the general right." Lord Eldon had often oc- 
cnoB to reeegnise the same point; and in South^v.Sher- 
mati(2 Ma. 437) eaya, " If this publication is an inno- 
eott «oe, I ^pt^end that I am authorised by decided 
an ts By, that, whether tbe author did or did not in- 
tmd to make a profit by its publication, he haaa riglit to 
sa BQsoctioD to prevent any other penon from pubUsh- 
iig it-** Nor is diia ri^bt to prevent innocent writings 
vm ^timg pnUiabed without the consent of the antimr, 
ciifasd to those in which he has kept them in a state 
if eatiR privacy and secrecy before the invasbn com- 
phiifd OS : the tight is not lost by partial and limited 
eoaKaaicatiini, not made with a view to general pub- 
Bcstien, as is diewn by several cases, partienlarly that 
•fiord Claruidon's " Histoiy ** and others, among which 
ii floe, I think, concerning a paper written by Mr. 
Bnkc. MaeHiM r. Ridiardson (Amb. C94) is strong 
■a this reflect. He had allowed his popular little 
faaa, whilst remaining in manuscript, to be played 
■**ml ^mm, and to that decinon neither Coman 
>^«^ (5 T. B. 246), nor the case of thepky of 
"]fHinsFd>ei«^'*iB Jfan^T.^MiitaS (fiB.&A. 



657), is oppossd. Even Mr, JnsUoe Yates, in Miltarr, 
TagUry (4 But. 2378), said, **Mott eertahily the sole 
proprtotor of any copy may detenalne whether he will 
print it or not. If aajr perscm takes it to the |»eai 
withont his oonsmt, he is certainly a treepaiser, thowh 
he came by it by legal meuu— as by loan or by de- 
volution; for he tnu^reans the bounds of his trust, 

and, therefor^ is a trenasser. It is certain 

every man has a right tokeej> his own senUments if he 
pleases; he has certainly a right to judge whether he 
wilt make them public, or commit them only to the 
dght of his friends. In that state the manuscript is, 
in every sense, bis peculiar property, and no man can 
take it from him, or make any use of it which he has 
not authorised, without being guilty of a violation of 
his property." These are the words of Mr. Justice 
Yates, the effect of whoae judgmoit in MtUar r. 3^ 
we are all acquainted. wiUi. Now, this protection, 
by the coounon law, of literuy cwnpoaitioos that have 
never, with the ocmsHit of the author, been gem- 
rally published, cannot, I apprehend, b« evaded by a 
translation, (the case respecting Dr. Thomas Burnett's 
Treatise, mentioned by Lord Hardwioke), an abridg- 
ment, or a review. A review professes to treat of the 
general character of the work reviewed, to analyse 
or dissect it, and to shew from the contents some 
reasons for the praise or diq>Taise which it may be the 
critic's task to disseminate, and which it may parti- 
cularly deserve. A work lawfully published, in the 
popular sense of tbe term, stands in this rsspect, I 
conceive, differentiy from a work which lias nevw been 
in that state. The former may be liable to be trans- 
lated, abridged, analysed, or exhiUted In morsels, com- 

fdimented or otherwise treated. In a manner which the 
att« is not. Suppose, however, instead of a transla- 
tion, abridgment, or review, the case of a catalt^e— 
suppose a man to have composed a variety of Utenuy 
works, which are innocent, to use Lord Eldon's expree- 
uon, wtiich lie has never printed or published — suppose 
a knowledge of them should be obtuned by some un- 
scrupulous person, who prints, with a view to circula- 
tion, a descriptive catalo^e, or even a mere list of the 
manuscripts, withont authority or consent; does the law 
allow this? I hope and bdieve not. Tbe same prin- 
ciples that prevent more candid piracy must, I con- 
ceive, govern such a case also. By the pnblicati<m of a 
work that a person has written to particular persons or 
on a particnlar subject, he ma^ be exposed not merely 
to sarcasm, but he may be rumed. There ma^ be in 
his possession returned letters that he has written to 
former oomspoadents, the publication of wliich, bow- 
ever faumlesB the letters were, may not in after-life 
be a recommendation ; or his writing ma^ be other- 
wise quoted, squaring in no sort with his outward 
habits or his worldly poMtion. There are callings, 
even now, in which to be convicted of literature is 
dangerous, although the danger is sometimes escaped; 
or the manuscripts may be those of a man on ac- 
count of whoee name a mere list would be matter of 
genoal cnriouty. How many persons could be men- 
tioned, the publication of a eatalogue of whose unpub- 
lished writings would, dnrii^ their lives or afterwards, 
command a rea^ sale? The question, however, does 
not turn upon the form or amount of the mischief or 
advantage, losa orgain. The author of tlie manuscripts, 
whether he is famous or obscure, hish or low, hu a 
right to say of them, whether light or heavy, saleable or 
unsaleable, that thev shall not, withont his consent, be 
published : and, I think, to use a dishonest knowledge 
of them, for tbe purpose of composing and publishing, 
and so to compose and publislt a catalogue of them, 
amounts to a publication of them within the principle 
and the rule. Assuming the law to be so, wliat is ita 
foundation in this respect I It haindt reference to any 
oouidentions peeuliarly UAeraiy. Thoee with whom 



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evr oeiBBiea l&w originatvd Ini iwt, probablT', aMMig 
iMr many iii«it8, wat of b«i^ patrms ef letters; but 
thejr knew Ibe (My and MeMBiBi/ of pnteeliag pr*- 
{•rty, aod, with Uwt gtMial «l>i«et, Iwt dewa ralfa 
pwnaentlT w^ndTB ro lw M^aiik otmSu^SMtg then- 
BRlres to foe mioiiB form* nid BMdea of pioper^ that 
peaoe or cultiratiMi might discovw or intn»duoo._ The 
prodnee of mental laboor, thoaehte, and sentimeBta 
ncorded and preserred by writing, became, as knowledge 
went onwonbj and the eoltnn of man's nnderstauding 
advanced, a kind of pr^orty wUch it was impossible to 
ttsregard. And the iaterfSBrmos of modern tegtBlatien 
upon the snhj ect by tile statute of the 8th of Queen Aime, 
profesung, by Its title, to he fw the enconragement of 
leaniing, and uoiDg words for Ukai purpose, whether it 
enemtes in anxnaentatitm or diffiinntion of preyions 
r^ts, haTing left them to some extent nntouebed, it 
ms fonnd the common law proTtdsd for thdr security, 
St least before pnbficaUon by the writer's consent. The 
ipeeies or kiiM of Aiag in which property is claimed 
tad, of eonrsc^ to be particularly eonsidend, in deoid- 
ing ike question whetiisr a right in it was invaded, and 
how tihe invasion should be prereBted or redressed ; 
tad this class of property, by nature not oorporsal at 
aB>ornot exdnsirely e<m>oreaI,rec[uired to be defended 
against inc«poreol attocKS, and not at all, or not ex- 
slnsiTely, afftiinst bodOy saaaults. Upon the principle, 
therefore, of protecting property^ it is that Uie common 
law, m cases not udta nor prejudiced by the statute 
dielteTB the privacy ofthoughts and sentiments commit- 
ted to writing, designed by the atttiior to remain not ge- 
nerally known. This has been, in effte^ jodieiaUy de- 
elswd, not by any jedgo more dbtineUy than by Lmd 
EUml on several ocoanMi% particnlariy in Mr.SonA^t 
MM.* be says, ''It is to protect the exdnsiTe mopoty 
of tlw wmer that injunctions are granted. And 
again : ** I hare examined the cases I have l)een able 
to Bwet with eontuning precedents for injunctions, and 
I find that they oil proceed upon the ground of title to 
property in the plunttff.** Such being, as I believe, the 
satnre and foundatioB of the common law as to ma- 
nuscripts, independently of Parliamentary additions and 
snbtractions, ite operation cannot, of necessity, be con- 
fined to literary subjects ; that would be to limit the 
rule by the example. Wherever the prodoce of labour 
is liable to invasion, in an analogous manner there must 
he, I suppose, a title to analogous protection or redress. 
Snch I oonnder the case of mechanical works or woi^ 
<tf art, executed by a man for his private use. What* 
aver protection those, or some cf tiiose, may have by 
Ifto act of Parliammt, Aey ar« not, I q»prehend, de- 
serted by the common law. Hie principles and roles 
which it applies to literary compomtions and mann- 
aeripts must, to a considerable extent, be applicable 
to these also. Mr. Jostice Yates himself, again, In 
MiUar v. Tojfhr, says, that an author's case was 
exactly similar to that of m inventor of any mecha^ 
nical improvement — **Both original inventions stand 
npon tibe same footing in point of property, whether 
the case be mechanictu or literary, whether H; be an 
epic poem or an orrery. The inventor of one as well 
as the author of tiie other has a right to determine 
whether the world shall see It or not. . . • . Exam- 

Sles might be mentioned <tf as great an nertion of na>- 
iral meultiefl^ and of as meritorious labour in the me- 
ehaaical inventions, as in the ease of authots. We 
have a recent instance in Mr. Harrbon's time-piece, 
i^ieh is said to have cost him twenty yean^ appUca- 
lion ; and might not he insist upon the same argnmente 
^the same chains of reasoning — the ssme foundation of 
aooral right, the property tn his invention, as an author 
can for his.** Property m meclianical works or works 
•f art executed by a man for his own amnsement or 
instruction, is allowed to subtist certainly, and may 
not before pnUleation by him be iaradad, not msvdy 



by e<^ying, but by dsscr^^na or eatidogues, as i 
ifipears to me. A catalogue of voA. works ra^, i 
ihielf, be valsaUe ; tt mav alao elfoetoalfy shew ffc 
bent and tosB 4^ mind and KeKng and taste of the srtiit 
specially if not profcss i oiiaL The portfUio w tt 
stttdb nuy disekiso as mvefc aa tiie wrilteg^tahls. i 
man may employ himself In ; » i ^ rt B in a manner vei; 
h ar m le ss; hnt which, if disclosed to society, mig^t di 
stroy the comfort of his life, and eren his suceesB to 11 
jEvery one, howevtf , has a right to sa^, that the pn 
duce of his private hours is not more liable to pnbuci 
ti(m without his consent, because the pahllcation ntwfa 
be creditable or advaotageoDs to him, than it woala l 
if it were otherwise. Addreanng my attention spedfi 
eally to the particular instance beifore the Court, 
cannot but see that the etchings, being executed by th 
plaintiff and bis consort for their private use, being th 
prodaee ef thrir private labour, and belonging to nun 
sdves, they were entitled to ret^ them in a stete g 
privacy, and to withhold them frona publication, lln 
right, I think it e^sally dear, was not lost by the fi 
mlted oommnnieation which they iq>pear to have mads 
nor vras it confined to the pn^biting taking of im> 
presrionswititontor beyond their oonaentfiromthepUtu 
which were their undoubted property. It extendi^ ] 
conceive, also to the prevention persons unduly ob 
talning a knowledge of the subjecto of the |dates fiin 
publiwing, at least by printing or writing a deseription 
of them, whether more or less limited, a snmmvf oi 
catalogue, whether professional or otherwise. d\A I 
am satined, I repeal that the means of oomposi^ and 
forming the catalogue in question must, nptm the ma- 
terials now before tiie Court, be taken to have been oV 
tmned unduly— that is, witiiont the eonssnt of nw 
I^aintiff and without that of his consort, and without 
any right to do so, moral, equitable, or l^aL 
I, then, deny it to be an interference with anotheri 
propertv 7 I think not. The defendant apnesn to 
ma to have been seeking to make use, for his own 
purpose, of what does not belong to him. That the 
object of printing and publishing the catalogue wu 
money, was gain, no man, of course, can doubt; ana 
that it would be very saleable, and that, if copies were 
to be multiplied, edition after edition would find les^ 
purchasers, with or without the superfiuity of the aiits- 
graph, is highly probable, for reasons suifidonfly ob* 
rious: I do not say on account of the graceful inmrset- 
ness of the eomplimenta, or the service to bisto? 
of the memoirs prefixed — these are mere garnish— mb 
maocount of the solid and snbstantial part of ths fmr 
lieation. What, however, can be the defoidaDfsTV^ 
or that of any mrson but the owners ef the platc^ t» 
tiiis benefit t It is for them to use, or bestow, « 
withhold absc^utely impreesiona; nor can a st'siV^"? 
allowed to say they shsll not. They alone are entitied 
to decide when and how, and for whose advantMM"*^ 
property is to l>e msde use of. I think, therefcWt not 
only that the defiendant here is unlawfnUy invsffliV 
the plaintiff's right, but also that the inva»on mo* 
such a kind, and affecte such propertjr, aa to entitls UN 
plaintiff to the preventive remedy of injunction ;^ aadn 
not the more, yet certeinly not the less, because it » sa 
introaion— an unbecoming and nnseemly intrusion— sn 
intmdon not idone In brmeh of oonvcntional ■"^'^ 
hnt olfenrive to that innate sense of propriety ^Wcfitt 
naturd to every man, if intromen can fitiy desems 
that which is a sordid spying into the privacy of doin<«c 
life— mto the home— a word hitherto sacred """"^ 
us— into the home of a fimiily — of a femily whois pri- 
vate life forms not tiielr only unquestionable tiUe to uke 
most marked respect. To relax the restraint ^■^^ 
been imposed upon the defendant Is, consequentiy/j™* 
I am, not now at least, prepared to do. It is anouwr 
question, whether, as a condition of its oontinasncs^iM 
is not entitled to require^ that, at this it^ of thecaoHf 



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M 



a CM bcdinetadfor theopinitt of ft Cosrtofbw, or 
B action be bnmg^ acBiait hta. It hai^ indeed, Men 
ye w waal, peTlu|M^ of Ute yean than fimneriy, and 
IB oftcB Jnat, where an injunction has been granted 
'wt&oBt Dotiee, for the pnrpoee and on the groand of 
wnHmetiag & mcrelj Imu li^t — on whidi footing al(Hie 
I bam been treatiqf tlua matter — to take such coarse 
KpoA an mterloCTftory ^plicatioa to diaeolve it, where, 
al Vcart, UteK is doobt or difficulty aa to law or &cL 
hat net «ffi ri cn t at <Hice to displace the iajoncticai. I 
Aiak it, therefore, as w«U to address m^elf to aome 
newf at this appJieatioa that hitherto I hare scarcely 
aOaded to. Amongst the amendment of the hiU that 
han bco ntoUioned was a chaige, ** that some of Uie 
i^msMona in onestion were produced thus— namely, 
tut wtaia of ue plates were ^ven to Ur. Brown, ior 
fte pnnaas «f prii^ii^ oertun unpressicois of them for 
Or plaatiTs eoaaort and the plMnttff; and that H r. 
SnwM employed tbenon one Uiddleton, who, without 
Mr. &own*s conarnt or knowledge, and in riolation ef 




TtedtAge, having, as I hare said, been introduced 
after tW iist iajuietioD, is not Terified by rither of 
fte ifidnito of wtober, but mnst hare been under the 
ti Ike peUiafaer and his solicitor and counsel while 
nsaapau was in prepar a tkm. And it is to be ob- 
tanL that the answer, though mentioning more thui 
wetaeiMMaf Hiddleton, contains no denial, thou^ 
Itmmmm A» no adniasion, that any person so called 
Werhadhceain Mr.Bn>wn*saerTiceoremplwm«it. 
ThtBstHO, howcrer. was conducted before me in sneh 
a BMv, that, nnm the tepW had commenced and 
■ide one progreaa, I was under the petvoarion, and 
Ituak jtmnaahlj, if Dot neoenarfly, taat the alleged 
fact ef Middletim, the person from whom J. T. Jndae 
^Miiied die aixty-Qiree or aixty-four impresnons in 
VHixa,haTbig been a workman in Mr. Brown's ero- 
pw— M, was anced on each side to be in eridence or 
l» m tm. In tne reply, however, the leadinff coansel 
fir tha defendjut the publisher said, that he disputed, 
nd that it had ncTer been intended to admit on 
that any person called Hiddleton was or 
haft bsa m Mr. mowu'a aBployannt. This pro- 
ted adaEMion at th« Bar, in whidi the plafaitUrs 
wtMded, that the denied BoaBwian had been 
>adB hr&t eoonsel opposed to them; that the &ct 
Apaieo wm, howoTer, proved by smae er one of the 
"wdar iu «f November ; that noties bad been given of 
■adag tiuae affidavits ; and that tiwy ware admianble, 
atlsMt oa this pmnt. The plaintiff's coansel also ad- 
Wlsd te the cireaaDsUnoe, that, on the 12th Deoembeiv 
flt dsf he£an the hearing of the motiwi began, an 
Aimt «aa filed «n the pabllAer*a part, thoogh his 
aMBMl did B0t make use of it. I was of opinion tiiat 
aartisa; es|aeMed in terms sufficiently clear, had not 
bM givea. at readtng nther of the affidavits of Novem- 
ht: whariier, <» a sufficient notio^ either of them 
anUerceald aot hare bsea flowed for ■CTpoiMe 
taWmd.thMe^ tlMt the aottoe aarred had been fan 
' ' ~ bjr the plaiatUr'a aolieitor to aataad te those 
l^ I ham little or ae doidrt; nor was I quite 
1 that the other selidtor had not so nnderstoed 
■tOmae. The |daintiff*s ooBBsel then asked thattbe 
bttiag a€ the aottoa should be st4^iped and adjourned, 
^«dar teeaaUea fresh notiee of reading te be given, 
mi to ha«B the caae anoed unambwoooaly oa tiiat 
faatiBa. tbm I shoald have aeeeded, if the pub- 
fiihar^ eeaaaal had not objected ; but, m ihey did 
•lMt,Idee&Dsdteeoaseat; and the plaintiff's eeva- 
« ast daaiii^ to make any farther obsetvatlens on 
teaatoal cas^ the npiy was continued, sad the amt- 
MevAidsd, with the UU » anendad, the affidavits 
<fft*iVii,thaitrimiMhiad the annNi^ ai the aa^ 



materials. Now,intfai^ I was at least strictiy right ; 
but it was aot only a questicm of ^aolving or vary- 
ing, at the dafendaa^s instance, an injunction obtained 
u^inst him without notice, on whidi occsrion the 
^urt is generally strict wiUi plaiatifla— it waa also 
one represented by the defendant's answer, and by hla 
oonnsel, as aflecting his reputation ; and if they thought 
advantageoaa the course tnat they elected thus for him, 
it was, as it seems to me, inst to allow the matter to 
proceed in its actual state. Now, iiad it appeared before 
the Court, on this occaMon, that the person called Mid- 
dleton in the answer had been in Mr. Brown's employ- 
ment, and that it was a correct inforenoe from the focts 
in evidence, that he had availed himself of that am- 
ployment to obfaun improperly the impreanoDB that 
wen acqaired from him by J. T. Judge, I should not 
have had the least haritation in ay ing, that, the motioa 
being refused, it would not be right to raaort at thb 
stwe of the suit, if at any, to a oourt of kw ; for not 
<mJy, as Lord Tenterden said in Jfwmy r. /RmAL (1 
B. & Adol. 804), is an engraver, having eontraeted to 
engrave a plate, and to appropriate the prints taken 
from it to the use of another, liable at oommon law 
(independentiy of any act of Parliament) to an action 
for breach of that contract; bat the conduct of Mr. 
Brown, — if he had taken from the plates impreesioas 
beyond his order or connnisBion, and retained, than 
without authority, — nor less the conduct of Middleton, 
if he, beii^ in Brown's service, had, by a double infi- 
del!^, been giuUy of so acting, — must have been caaai- 
dered, in the language of the bill, ** a violation of 
eoafidoice,'* or, in men home-bred and ^thy word% 
** a breach of tnut," and that not in a technical aaoaa 
merely. The phraae is not always uaed by lai^en i& 
a senae peculiar to thenadvas. They and the rait of 
the world sometlmaa wiee in thus describing a trans- 
action ; and when it happens so— whan, pc^olarly aa 
well as legally, a transacttoa is called a breach of 
trost," we may be assured that it is not one to boast 
oC Certainly, the accoaation brooxht against Middle- 
ton by the bili if true, disgraeenil to him ; and, if 
he had tempten or aocompUees, to them likeniae; tlie 
more ao in tnis instance, since meannese and treachery 
are aa little the charaeteristics of that class of worl^ 
men in this eountiy aa of any dass in it; and the 
more 80 with regard to a tempter or an aoeompUo^ if 
then was any, Mcause the workman waa probably the 
po<nw and lea educated mm. It might, therefiDre^ nava 
Um more aatlsfoctory had Mr. Hiddleton or Mr. J. T. 
Judee, or each of them, been a depoung witnea for the 
pnbliuier on this occasion. Nor has awngle reason for 
the absence of any such affidavit samsted itself to my 
mind, or been suggeated to me, which is not unfavour- 
able to his contention, exoept (if it IS an exoeptien) 
this— that he had a right ao to eonstnict and conduct 
his ease upon the motion as to render the introduction 
of the fifth affidavit on the pMntlff's part difiieuH or 
fanpoaible. Bat vfaoever and whatever Middteton was, 
bowem he may have bondaoted himself, he did not, 
inniyoplBioB,lTroaat,enifora better rfeht thoa ha 
had hinudf on J. T. Jodge, aor did J. T. Judge eonfor 
aboCtar right than he had va Ae puhKsber. And if 
MiddlotoB was Brown's sarvaatwwotkmaB, and guilty 
of the breach of tnnt chsmd by the bill, that nnis^ 
X apprehend, nrnke thb bok «0Bnthing more than a 
rait nr pratoeting a Tight merely legal. It would b^ 
for every nbstautial parpose ofth e caua, exactly as if 
Mr. Brown had given the hnpreadons to the defendant 
the publisher. He has, however, certainly, I think, a 
right to s^, for the po^oees of wis motion, that such 
a breach of trust is not proved ; but he cannot, in my 
(pinion, maintain that his moos of dealing with the 
eaaa, both in the anawer and upon the notion, baa not 
been Buffioieat to latae a jadidal avspicton that i* Ji 
proreaUa; nor Bo I think tiMt —^ ida a f«par toba 



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THE JURIST. 



disregarded in conndering whether a court of law shall 
or ahall not now be retorted to. But, were it to bedis- 
Kgarded, I should still not think the facts known with 
sufficient fulness to render the sending a ease to law 
at present fraitful} and shonld think an action now, at 
least, of doabtful utility, without admissions, the nature 
and extent of which could not properly, at present, be 
well defined or well ascertained. These considerations, 
however, are not all. The catalogue professes to be 
connected with a public exhibition of the works of art 
described in it, and to be for the purpose of that exhi- 
bition ; but the exhibition has not taken place, — is, ac- 
cording to the answer, not to take place, — and ts, by 
the unquestioned part of the injunction, prohibited 
from taking place. The answer, saying, too, that there 
hare been printed only fifty-one copiesof the pamphlet, 
(the total selling price of which, at his own rate, wonld 
be at the utmost 11. 5*. 6d.\, adds, that he has parted 
with several of them, and that the type, moreover, has 
been broken up. He has, also^ the oenefit of the un- 
dertaking given to this Court m October that has been 
already mentioned. If, then, it b right to refuse the 
motion, as I have, upon my view of the actual evidence 
and the law, stated my opinion to be, can it, on the 
whole, be useful or justifiable to require the plaintiff to 

fo at the present time and sti^ into another court ? 
n my judgment, not. To do so would, I tliink, be less 
than justice to him, and more, if not less, than justice 
to the defendant the publisher. The order, therefore, 
that I make is, to refuse the motion, without prejudice 
to any question in the cause, and with a reservation of 
the costs, the plaintiff and Mr. White, his solicitor, 
continoing the undertaking already given, and jiving 
also an undertaking, either to speed the cause, m the 
language of Lord Hardwicke's order in Totiton v. 
Wall0r *, or to prosecute it with diligence. There 
may he liberty to apply. The motion in the accom- 
panying suit was treated at the bar by the publisher's 
counsel, and I think also by the plaintifl^'s counsel, as 
one that must be dealt with as this, and abide the same 
result. The same order, consequently, in substance, 
must be made on that; but omitting, as it ought I sup- 
pose to omit, any mention of costs. I do not see why 
i>oth suits should not be ready to be heard in Trinity 
Term next, or sooner ; and, from their nature, the Court 
will probably be disposed to bear them whenever ready, 

COURT OF QT7EEN*S BENCH.— Mich. Tbem. 

Bbo. v. Tbb Inhabitants of Pott Shriglev. — Nov. 25. 

Oroundt of Appeal aaainat an Order o/Removai sUUed 
that the Oraer ana the Etaminati<ms were had^ and 
that the Order wu not made upon the Complaint of the 
Ovtr t ee r t of the remotnng Parish: — Hadf that the 
AppeUtmtt were not at l&erUf tmder them to Ob- 
jeeHom to the CaptioR of the Exomimattoiu. 

On the 7HU of the Appeal^ it appeared that the Re- 
lieving-oMoer of the Union relieved the Pauper m the 
Respovamt Parish, upon the Applicaticn of one of the 
Overteera of that Pariah; that, V Order of the Board 
of OuardianSy he eontinued auch Belief for a Mouthy 
and charged the Am<mnt to the Remondent Pariah. 
The Relienng-^fficer toeeify obtained a Cheque from 
the Board of Ouardiana, and paid the Relief out 



• This ordar it sUtcd, in 3 Smiist 681, thus :— " Hii Loi4- 
■hip doth order that an iitjunction be awarded to restrain the 
dmadauti, tbrir aemnU, agents, and workmen, from printing, 
icpriating, pubUsbing, or exposing to tale any copy or edition 
of a certein book or poem, entitled ' Paradise Lost,' composed 
by John Hilton, or Uie life of the said John Milton, or of the 
notes of varioos aathon upon the said poem, compiled by 
Dr. 'nomas Newtoa, until the heatfag of tbis cansfl ; and it 
i8ftul^ordend,tliat tha pUdmiflb do speed their caaie." 
(Beg. lib. B. 1751, ftO. 322). 



of the Proeeeda. T%0 Seaaim* htuinff ^uaAed th 
Order, autjeet to the Question, v^iether the JSritfenetf 
Ckargeahili^ was aujkient, this Cowl hHd^ tha 
ChargeeMlif^ toaa prtned, and quashed the Order o 
Sessions. 

A Pauper, teho had resided with her HuAand till hi 
Commitment to a Prison out of the Parish, in ^pri, 
l84G, at which Time the Five Ymri Residence reqvire 
fy ^at. 9 Si 10 Vict. c. C6, was not complete, is rt 
mov^le under the Proviso in Sect. 1 ; the Effect of iho 
Proviso being, that the Wife is removable, if, undc 
the Cireumstattees, the Husband, having come to A«r an- 
become chargeable, would have been removabie. 
On appeal at the Epiphany Quarter Sessions, holde 
at Nether Knutsford, in and for the county of Chestei 
against an o)*der of two justices for the removal < 
Sarah Crompton and her five children from the town 
ship of Pott Shrigley, in the aaid county, to the towz 
ship Tyldedey-enm-Shakerley^ in the connty c 
Lancaster, the sessions qnashed the order of remoTa 
subject to the following case. The examinations, as fi 
as it is neoessary to set them out, were as follows:— 

'* County of) The examination of James CardweU, n 
Chnter. f lieving officer of the Adlington an , 
BolUi^[ton district of the Macclesfield Poor-law Unior '. 
in the said county, and of Sarah Crompton and Richar 
Crompton, of H^-de, in the said county, collier, take, 
upon the complaint of the overseers of the poor of Pot ' 
Shrigley township, inthe said district, nnion,andcoaiitj^ 
this 25th day of August, 1846, before us, Thomas Swan- 
wick and tfolm Dixon, Esqrs., two of her llajesty*t 
justices of the peace in and for the said connty, as to X\t( 
said Sarah Crompton's last place of legal settlement 
who, upon their oaths, say as follows : — 

" First. The said James Cardwell, for himself, aaitb. 
the said Sarah Crompton and her five children (naming 
them) are now reHoeiit in, and receiving relief from, 
the said towndiip of Pott Shrigley, in the said district 
and union ; and the said Sarah Crompton, for heraelf, 
saith, &c.; and the said Richard Crompton, the ex- 
aminan^ for himself, saith, &c 
"Taken and sworn by the 
said James Cardwell, Sarah 
Crompton, and Richard 
Crompton, at Macclesfield, 
in the said county of Ches- 
ter, before us, 
" John Dixon. 
" Thomas Swanwick." 

"The grounds of appeal were as follows: — First, be- 
cause the said order, and the examinations on which the 
same is founded, are, and each of them is respectively, 
bad, informal, and insufficient in law, upon the face 
thereof. Secondly, the said Sarah Crompton and her said 
children have not, nor hath any or either of them, any 
settlement in, and do not belong to our said towndiijp. 
Thirdly, that the aaid Sai-ah Crompton and her said chU- 
dren were not legally chargeable to your sud township 
of Pott Shrigley Bi the time of the making of tha said 
order. Fourthly, that the said removal order or war- 
rant was not made upon the complaint of the overseer? 
of the poor of Pott Shrigley aforesaid. Fifthly, that 
the removal of the said Sarah Crompton and her said 
children from your sud township of Pott Shrig^ej 
to our said township of T^ldMley-cum-Shakenejr 
was, at the time of their said removal, illegal, ana 
contrary to the provisions of stat. 9 & 10 Vict. c. 6S, 
she, the sidd Sarah Crompton, having rcMded for fire 
years next before the application for the said removal 
order or warrant in ^our said towu^ip of Pott Siri^- 
ley, without computing in the period of such readeaee 
the time during which die had been a prisoner in a 

E risen, or an in-penrioner In any hospital, or confined 
1 a Innatie asylum or oUur receptaelB for lonatici^ <w 



James Cardwsix* 

Sarah Crompton. 

}■ hit 

Richard + Cbohfton. 
nuuk. 



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THB JURIST. 



01 



wm m patient in • luMpitd, during which aha re- 
tmj pariah, or was whoUj or in part 
mamtamed hj may nte ornifaaeripttoa rdaad in a parish 
ift wUdk ate did not rcrida^ not beinE a honk fide eha- 
lUeUe and that the ranoral ofher mid children, 
ai t2w tuM they were ao rcmored, was aleo illegal and 
uutuaj to tha proTiuons of the arid act, by which 
Uwy KR dtaocfted not to be removable when his or their 
^raft ia not remoTable. Sixthly, that the said re- 
Mral order vaa not made before the praring of the 
maU act. Serenthly, that copies of the said examina- 
^ oidv, and the notice of the chargeability of the 
pupen have not been sent to ds» according to 
Eighthly, tliat tha arid removal order or war- 
«cuM inopaFBtiva^ null, void, and of no effect, 
and by virtue of the said act of Parliament. 
On tha trial «f tha nppeal, Janiea Caidwell proved 
that he was the relieving o£Seer of the Adlington 
nnd Bnlfiigton district of tha Ifaedesfteld Union, 
m which dirtrict the respondent township is ritnate; 
IJMt the MacdcaSeld onion consisted of forty-one 
tonahips, of which Pott Shrigley was one; that, 
«a^cimday of An^st, 1846, the pauper, Satah 
(^iMBiitan,whe was lini^ in the respondent township, 
anfiadteUKfarrdief for henelf and five children; 
t^he tha relieved her with &s. in provirions, on 
■eonnt the napondent township; that Burton, one 
or ae efoieai of the respondent township, had applied 
tote ao to relieve the pnapers ; that witness bronght 
AeeaH bsfim the board of goardians on the 16th of 
Chat Mnth, and they ordered the reUef to be oonUnued 
* *« P»pa» fc* • month, at the rate of A#. per week ; 
a^that he pnid them at that rate for the month, and 
the asae nn t to the respondent township. He 
linpndMnd the oidor-book of the hoard of gniudlans, 
whmm were aet out the names of the pauper and her 
fw cUdm, their residence in the respondent town- 
ttit,ac amount of relief the witness had given them 
M^wiA befiire, and an order that the relief, at 6». per 
*Mld be cMitinaed fn a month to the paDpers, 
aad Ori^ordcr sbonld be obtuned for their removal; 
w d he pe ered that the entries and order were made In 
mcnee. In emas-ertminaUon he proved that he 
^wy s H a lnid a cbeqae from the board of guardians 
ifintha ti saa um, and that, out of the money he thus 
Mtansd bsB the common ^d of the union, he paid 
Aa iriarf; ad that the application Ibr the order of 
jMiii l was made on the 26th Angnat, 1846. The 
e"J'"'» Suah Ovmpton, proved that die ia the wife of 
QwnptoB the younger, and was mairied to 
hn ^en yean ago; that, in June, 1841, they went 
U Rsde & the re^Mmdent towndiip, and continued to 
uveAsie tegether ontU April, 1846, when he was 
■lijiiihieihil cn a charge of felony, and committed to 
Choto Castle, a prison out of the re^wndent f own- 
** y; aa d that he remained in such prison until the 
■bwiugaarixes, when he was tried and transported; 
and that At eontinned to reride with the arid children 
■ the ic^aodent township until the 2eth September, 
urn, eta die and her children were Uken,ander the 
«Msr ef lemdval in tUs case, to the appellant towndiip. 
ft WM eiiijeeCed by the ^)peUant's oonnsel— First, that 
Ua ezaminariona were bad, the caption not stating 
taMi ta he tahcB on the complaint of the overseers of 
Ita Tv i i isiiihiil towwhip^ and because they did not allege 
net the panpeia were come to inhabit in, and were 
actMQy ^argeablc to, the respondent township. Se- 
cwdly, that the examinations were also bad, becnose 
taA ef them was not a separate examination, complete 
« atmSt, with a separate caption. Thirdly, that there 
nss ne seffident aridenee, on the face of the examina- 
iaasaf the paupers being chargeable at the time of 
the order. Fourthly, toat the evidence of 
iven at the aeariona was not sufficient. 



Kft^,tha^lj the ivoridons of the abore ac^ the 



paupera eonld not be removed under the order of le- 
moral, although it was obtained before the poising of 
the act, the paupers having rerided in the naponoent 
township for five years and upwards before the apidi- 
cation for the order of removal. If the Court should 
be of opinion that any one of the objections to the exa- 
minations is good, or that the evidence of chargeability 
given at the sesrions was insufficient, or that the pau- 
pers cannot be removed, in consequence of their having 
resided for more than five years in the re^ndent 
township before the application for the order of re- 
moval, wen the order of sessions is to be confirmed; 
otherwise, to be quashed, and the order of removal 
confirmed." The case was argned in Trinity and Mi- 
chaelmas Terms* by 

Ptukleif and Pietrnng^ tn support of the order of ses- 
rions.— first, the caption of the examinations does not 
shew jurisdiction to make the order; It should shew that 
the complaint of the overseen was, that the paupers were 
aetnally chargeable, or likdy to become chargeable, not 
having gunm a l^al settlement. In Beg. v. fVitlkam. 
(12 Jur, 791), this objection was raised under as general 
a ground of appeal as the first. Secondly, this Court 
will not answer the question, whether there was suffi- 
cient evidence of chargeability. The fourth question 
submitted to this Court means, whether there was 
legal evidence of chargeability. The cases of R<y. v. 
Bradford (10 Jur. 763) and Rig. v. little Marlow (11 
Jur. 240) shew that there was not In R^, v. Crmdallt 
(11 Jur. 922), this Court only refused to set aride d* 
aeeision of the Court of quarter sesrions, which found, 
under rimilar drenmatancea, that the pauper ma settled 
in the parish m account of which relief had been given. 
Thirdly, the paupers were not removable. There were 
between two and three months at the end of the five 
yeor^ reudenotf in Uie renrandent parish during which 
the husband was not residing with the pauper in the 
respondent parish ; but she had a right to complete tha 
five years after her husband left her. The wife of a 
man, whoee settlement is not known, may be removed 
to her maiden settlement. {Re* v. Cottinghamj 7 B. & 
C. 616). Generd words in a statute must receive a ge- 
neral construction, unless there be found in the statute 
some ground for limiting and restraining their mean- 
ing. ( The &rl of Btietinff^ameiire v. J)rmv, Wilm. 
177, 194, on sUt. 27 Hen. 8, c. 10; Sir W. Giant, in 
B«etJbrdv.Wad«tl7ye», 97, 91—93). [PaMesoe.J.— 
Soppoee a man, who had beni tried and convicted, and 
sentenced to imprisonment, returned to his wife and 
fiunily after the expiration of the term of impriaon- 
ment, can there be any doubt that the time of his im- 
prisonment would be excluded ? Can it be contended, 
that, when the husband is transported, the period of 
transportation is to be indnded Ij 

Towmmdj contra. — First, the objection taken to the 
caption of the examinations is not sperificdly raised 
by the first ground of apped, which objects that the 
examinations did not allege that the paupers were come 
to inhabit in, and were actudly chaigeaole to, the re- 
indent township. Secondly, the phrase ** sufficient 
evidence," In the third objection taken at the trial 
of the appeal, means **legd evidence." (Ats^. r. 
DuHnpitad, 12 Jur. 674). [Lord Denman^ C. J.— 
In Reg. V. Onmdalf, (11 Jur. 822), the ground of 
apped was, that the examinaUons did not contain 
any sufficient le^ evidence of relief. Erie, J. — The 
distinction between sufficient evidence and legd evi- 
dence is veiT clear. Patteton, J. — There can be no 
doubt that tne sesBions meant to ask whether there 
was any l^d erideuce.l The cases have put a mean- 
ing upon the phrase '^sufficient evidence of charge- 



* Jane 10, belbre Lord Denmu, C. J., Pittcioo, Cole- 
ridge, and Brie, JJ. Nov. 8, before Lord Deomsn, C. J., 
Cdnidie, ^ngMaon, and Brie, JJ. 



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fB 



■faOIfy;" and the Gointirffi iiBdentud1i7lt8Bffiei«it 
wM wwe to nake oat dumiAUUr. Th« cans of Rea. 
T. Little Moriow (11 Jut. 240) and lUg, r. OrmtdaU ( 11 
Jut. 922) decide, that, hi this ease, Uiere was snffioMnt 
legal evidence from which the aeasicmi might infiBT that 
the relief was giren by the attthoritir of the appdlaut 
townstiip. ThiTdly,therewasnot«rc8idenceoffiTey«an 
in the respondent town^ip before'the application for the 
order, aniess the period darinff which tne hoaband was 
in ChesterCastle is included, which it cannot lie. ( Reff. t. 
Salfardt 12 Jut. 790), The fiye years' residence most be 
that of the head of the &mily ; and the wife cannot be 
conridered sach unless the husband is actually or eivi- 
Uter moTtnns. In Stg. v, €Hot»opf (12 Jar. 1071 )» tiie 
order was obttdned berore the paanng of tiie atat. 9 & 
10 Vict. e. 66. CWr. adv, mft. 

Lord DBNirAN, C. J., now ddlvond the jadgmsnt of 
tile Conrt.— The first qnestim vim, whether the ex- 
aminations were stated to be taken <m the complunt 
of the churchwardens and overseers, and the groond 
of appeal was specifically oonfined to this qmatitm. 
The examinations are stated to be so taken, uid we 
ore of opinion that the appellants are not at liberty, 
under this ground of appeal, to oontend that the mat- 
ters oomphuned of are not sufficiently specified; and 
tirnt for this reason lUff, v, O omer $ aU (17 Law Jonra., 
N. S., M. C, 163; S. P. as Jby. t. Sat^gMd, (IS Jar. 
781) does not apply. 

11m second question mo, whether ehargeabOt^ was 
tfiewn on the exseminatiMis ai^ prored at the triad ; 
and we think It was shown by tiie statement ef relief 
bdng given, and proved by toe evidenoe, Aeeafdnig to 
Am. t. J/aHbtp, (11 Jnr. 240), and Atgr. t. OtomoU, 
<11 Jnr. 922). 

The third question was, whelSier the pauper had 
become irremovable, as die had resided in the respond- 
vcii parish for five years next before the appUcatton for 
the order. She was the wifa of a man who, in April, 
1846, was committed to a prison out of the parish upon 
a charge for which he was, at the snmmer assizes, sen- 
tenced to be transported. She had resided with heir 
faveband till his oemmltmmt, and at that time the 
fire years* residence was not complete. If the hudiwid 
IwsDpposed to Inve ntumed to nis wifb, and the order 
to have been allied for to remove him, he woidd not 
luve been irremovable 1^ xeason of five ^nMi^ resMeneh 
hecaose an hnprisonment la another parMi m a erimlnal 
dtarge, ending in a eonvietlon and a long imprisonment 
and transportation, is a break in the reeidmce. (/F«9. 
T. 8alf6rd, 12 Jur. 790). The effect of the proviso hi 
9& 10 Vict. c. 66, s. 1, whether we look to the 11 ft 
12 Vict, c. 111, or not, appears to ns to be, that the 
wife ia removable if, under the circumstances, the hns- 
band, having come to herandbeeome chargeable, would 
have been removable*. Therefore, the rule must be 
awde absolute for quashing order of sesstons.— Onfor of 
a s fi si w yttrtsA 

▲oDBHouK. — In Acf, V. GrioUade, (sate, p. ii, c6L 2), 
Ovmdtr and SU4t, oo^ra, wen not heard od tbs gncsHsn, 
wbedwr a new trial wm gmitiblt. 



BAIL COURTw— MiCBAlDJUs Teem. 
Put r; Xaohau..— iVbs. IB tmd tS. 
Rvk «f Praetice—SUijfing Proceediupt afttr Vtrdiet on 

Jlttlon far mHjuldaUd Ifmuffm, Ckmrt^ mt 
tta/f tht Proe«tdmgM b^wre fituU Jitdgmmt, mm upon 
Tii3fmmttf4k9Amomti^1k» Fwdia mud VmU, M< 



• See Ay. V. m^Mt^ (it Jw». IMS). 



Pitnntt^ beinff ot JNbti^f to ^ou^tUtt As ^^vdfcl^^ 
ngmi^ final Jiidymmt fitt CA« Amiomit so rmtmnL 
. This was an action of a a som prit ftrtiie not aBBSBHBf 
certaingoods on a oantraot between plaintiff md dsind, 
ant. The defiendant pleaded, fiiBt, non assump^; « 
oondly, traverse of the |4aintiff limng ready sad wil 
ling to deliver; thirdly, ^t the goods were notaoesri 
ing to the sample, and tiiat the contract was TeadsM 
twether with various other pleas, upon which issue wi' 
joined. On the trial, the jurv foaiM a verdict for tl, 
plaintiff on all the iasnes, with dam^^ 8/.4«. Oa 
20th October, a summons was taken out t)efore a jodg 
at ohambers, calling m the plaintiff to shew oaoiei^, 
upon payment of tae ameont «f ^ verdict aod esil 
au fhrdier pneeedi^ ihoDld net be stayed. It, 
judge reftised to make any wder, on the gnmnd of It 
apiHieatien being ananHU at sach a stage of the ^ , 
ceedtngs; whereupon, on aftnmrday, the presertnd, 
which was to tiu same effbot, woa obtidBed; ag^, 
which, 

Atkarton (Nov. 18) shewed cause.— The applleatti 
is one without precfMent It ia nothing more than i 
attempt on t^e part of the defendant to prevent tt 
plunbff exerd^ng tin rnht he is entitled to by 
verdict, viz. that of entemig op his judgment opMi U 
If the Conrt w«re to grant snoh sn appIicatim^A 
eSect would be, that, where It is intended to tnair ' 
cross aetitm, the previoos wrdiet eonld be diqiessden] 
preventi^ the pl^ntiff e ttterin g up his jodgmtM v 
Iht ordinary wi^. In tiiia eaae tlie defcwMrt ha tn^ 
versed oertdn a tio intauto In tbe dedsMtioa, mm « 
whhsh is, the plaiBtiff*B nadineas and wilViigBeN to ds. 
liver. Unless tbe-rocord is made np and completeMj 
entering the jvdgmcait on the diffinvnt iasoes, tbepMB 
tiff will be nnabie to nvaU hira«0lf of the findiog of « 
jury in ttie event <rf Uie deftaidsnt bringing a sw> 
action ; for instance, If the defendant riionld comswsw 
an aeUon andnst the nhdntlff for a breech of hiBM« 
tract to deuver. Judgment b«lx^ entered npfa tta 
r^iilar way, cannot powbly preindioe the de wndM^ 
but the granthv the present apprfoation maf seriwwS 
affeottheplaii^ff. It Is aright the plaintifPifiestillw 
to, and one this €Durt will not derive him of. [H( 
referred to Pisktr t. PM (1 Man. « Gr. 266).] 

O^wUnff^ inaowort of tne imk.— There Is no Mm 
whatever why tne present rale should not be naoeflfr 
solute, the reftHal of which will cause the defirodiw 
to incur addlttm^ Costa. The defendant has ovnH 
and Is quite willing, to pay to the plaintiff alt that be 
is entitied to under the vertict. J.— 
dinory eircmnstanoes that sesms reasonalble w*^' 
there may be oases, however. In which the record iBi|« 
be required for tin prsssrvation of a right ; forl astuw^ 
wfam a right of way wna in question.] The p"*** 
aetbm is a mere money demand: it is not eBoojh t|w 
there exists a remote iiosstUIity of a orosa acU«i«"ff 
conuneTkead. Even should that exist, the P*^"^^ 
then comi^vte the iveord. Apidioati<nt8 of 
have h«sn granted, aa appaua mm theatstamsMHW 
Hasten. [He oitsd Oilm v. Sattit, (1 U. BM 
264; 8 Ld. iliqnB. 774).] Oir. «<fr> 

On m sttbseqnant 4fly, (N0V.S6), jndgmoit wis w* 

Thew wwiMlwgwatdiffioulty inft"*- 
mgamlelnthiscass. I oannot find that soeb afl!j| 
pficntien has ever been pmaUA either ti chsnbenor» 
ooort adversely, ahhot^ It has frequently 
pfaotiee to take the amoant of Mt and coHt^ 
stttortng up judgracBt. On (be best inmrideratiinHR 
I can It, I do not ase that I ought to tetrodoMT 
new praotlee; I 1tt««t» tber^we, dischaive 
Fmn the&ctsdf fln«HM, Idonot thbik the deftnaw 
ia entitled to Bmch Ivront, wh«n he has pat o» wj *; 
oNdaoMny plsi^ evwy aneof whteh Ikn tE****!!^ 
be Mn; MW, «l»«p(liMllMi MM belag v«»Mi«" 



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GoogI 



TBI JTJBirT. 




MMoin. 



COinT OF COSOIW PLEAS^HicB. Tkbb. 

9* SKBMf^aHU.9» 



liMMid vieto^ei^ a»i tfaal, Ift omhntHj vift Ik* 
•tntKMBt, til* tar vf FMdiUV H«tel wm MpM«toi 
iroB him jwrnxtkm, Mni otmfhi •xttwriniy by Km^ 

' «)adfaig tfw tap, beC*n Uw ■mainwt wu «Dl«Fed nto^ 

ud N o«A%kiMdAft«r the aMJciiur of the utmnMrt, ana 



fir .Wrfi^ AM flwl a« Zt^teiaitf Mtavi^ Mto M 

<yi aif, wktnim tie rioim^agned ioJ^N. <mr 

mOtBmmtuo/tJke TapaUaMta F,Eua»mt£» 

Ueame Smri^for N, To m Aatiom fifapteial 

CMKttf f a nftfty iV.la A41W Pommiom ^Uis Roam^ m 
«Arl0jaff dw- rt w. for hi* mtm VMOmdBm^tM- 
tSmM\ Tijmi I v k ii mt a Idemm:'*~-JatU, m MtOrn 
fmmRaitfir Jm^^mt mm ohitaHtt Ttrtdi^ Oat 
AaPlM HtdMtd a sood D^fijua to tke Aetio», 

-Th* in iil—tiini rtali Utai, by aaartaM 





imta hf tha ^liatiff «f th« fint 
I of A» aMMitf Mst, Mid Aa M«bA< 
Md M ftak^ «f tka tlHd part» tha plahrfltf 
ToMWiiiBiM aanyanftaiMfaiwof tha ti^ 
to findali^ Ha*d» im Ae nma hkm aa wm 
m a wfiat chap or la|^ to tiia ImM, at tha 
• of 4/.; and K a waaa ag t at d to cany aa 
nd to pa(]rtkanidwe^}-i^tol42.: 
aha that b« v«ald pBiahaH kam Mi— n. awl 
aaaaAothar ponca, ^ th» poatar^ ai^ a»d ethar Mali 
fipaaa «)Mcfa tlw aaid Nawnaa might aall or coMtune 
»1>ajWBiMa, anJ Ostba maid pay the Mid Mimh. 
l^fcu; iMd the dB^andaat and the Md Piafaatt, in 
tof tha premisaa, and £»r the beaafit of tile 
^ and aa hi» aaaatiai^ thuabv agveed wkh 
tkat, if Navraaaa ilMmU Mfca da&aU ia 
I pauataal {MaCwiuuiaa af all anH amy the 
laad Mreamantaiatta aaM apiiiat «an- 
tha apfakhnt aad Frabatt voald on 
ttaplaintiiF the aan of 200^ aaand Ibr liquir 
That MawBiaajaada defiuk, and that 
taad owiflc from him thaaan w 102^ for 
l«f ai. 17a.3J.to UnnkK. 6x ba«.&«.; 
the dfffendwit became liable to pay to the 
the aaid sum of 2M»^ &c Tha defeiulant 
.fint, Donastuapeit; aecondlTf&and and covin, 
an mii material; aad, thinUf, that the mid 
mat vat mtered into by the plamtiff, dafiendant, 
1 4k aaid aereial othw pttUea thereto, for the ez- 
•Mpaipoae, object, and intent, «■ the plaintiff wall 
nnr, aad the pumtiff aatend into the same with the 
■|nm abject and intantioBi of enabling tha oidd New- 
antoaater iato^ and talta and hare poMwriwt 0^ tha 
B, in ocder to aall and £»oee of, therein and 
for hie ovn n«e and benott, by retail, divers 
liqaoTB, to wit, wine, brandy, &c, to be 
and oooaiuDcd in the said room vf the said 
, withimt his haTinc been dniy Ueenaed eo to 
d^ eaaliaiy to the form at the statute in each case 
■adaaad provided. That Mewman, after the making 
md agreemeDt, and under and by virtue there- 
at Mined into and apon tha said room, to wit, on 
In, and did, m panaanoa thereof oa 8to^ sell aad dl»- 
|m»d^ §ar mammy, ami far hia o«a exohMiva beaefit 
aal adwMa^e, by ntail, to divata pitnai, divata 
fualitaeaof ua aaid excjaeabla to-badnuik 
■A BHaamed in and apon tha lOMi ao in tha posaes- 
tha aaid Namw^ nttimt U% the aaid New- 
■■^bBriag bean ao Iicmaea aa afennaid; and that 
the niiia^ parpoae in the plea mentioned was the 



ting oc the agreemeatjand 
tha pWatiffVi name aba remained orer Ue Up doao. 
Oaanaaocaaian anecdaa pendtwaa nadaaatintha 
plalariff*^ name, aad tha eonaaeditiM andar It ««■• 
taken iato KemMa'a ato^; bat thara was na vA- 
danoe of ibia having taJna place with tha plainliff*B 
faMwledge: btU Newman depoaad that the plaiaMT 
onae told him thai they ware tranagmafa^ the eaelao 
law% aad advised him to say, if qaaetiea e d about it, 
that he, Newman, was mot a tenant, bat only semnt to 
the plaintiff. The jary retamed a rardiet fw tha 
plaintiff on the first Mid aaoond Imnei^ aad iarthad^ 
fmdaatoatho third. 

BotiUt ea Nor. 8^, moared for a rale nin to eater a 
Teidiet fog the plaintiff on all the issaes, damagw 
ISm. 17«.^ er<sraaevtiiaI,orfMjadgMataniha 
third ^ea, aoa obataato Te a edlato ; imd caateaded , thai, 
hadapendeatly of thewitttaa agraanaat* tbaMvaaao 
aridsDoa af any anaagaoaent madabetwaea tha^aintlff 
aad Newman to lappoH the fcets alleged in the third 
plaa. TMaidt, J.— Than caa he ao doabt bat that 
Aey wiihed tbeoriginal Uesnae to oanydonUe.] Tha 
atatato MUed opoa to shew the Illegality of tiie agraa- 
meatistbeftGeo.d,G.61,s.)8, by which itiaenaolad, 
** that every ptnon who shall sell, barter, ezehaage, er 
ISar valaable ooaaidmtion otherwiw diqwae of aay aa- 
eiaeaUe lienor, b^- retail, to be dnmlc er coaaaaied in 
bjehotue or premises, or diallpenait or saffer any ex- 
ciseable Bqoor to be sMd, bartorsd, exohaaged, er other- 
wise dfapoaedof, ior valuable eoasideration, by retail, to 
be dmalc or OMisumed in hts heoM or piemisee withoak 
bring duly liorasad ao to do; and that evanr petacn, 
befa^ duly Hceaaed, who shall sail, barter, eKchaag^ ar 
for valuable eonsideratioa o^erwlae diapose of, or shaU 
permit or snffir to be sold, bartered, axchaagad, or 
otherwise dispeaed of, Ibr valaable eonaidwatian, aaqr 
ezcisMUe liquor, by retail, to be drunk er eonaoak- 
ed ia his houm or premiaea, not bring the hoaw ar 
prranises specified in nieh licenae, shall respeettrriy, 
mr evny such c^eae^ ou convietitm befere one ja»- 
tice, fi»frit umI pay any sum not exceeding 202. nar 
lem than 6L, togetner with the costs of the ouiTia- 
tion." This section only imposae a penalty upon tha 
petaon who shall mU without a ncenae, and this for the 
bMefit of the revenue. There is a ricar distanctioa ba- 
tweon thoee aata fbr the doing of which a patmlty b 
impeaed, wd tiioM whirii are adnally prohildted by Hm 
Legidataftt. The latter are aadoubtadly illanl, bat 
tha fbnacr BM not. In Smith amd Otktn v. d fa adsedL 
(M Mee. & W. 4A»), It wm held, that the 26th and 
VB^k seotiims of the Exeim Lioenae Act, (6 Geo. 4^ 
e. 81), which subieet to pmaltiM any manufacturer 
or dealer in, or ewer of tobaeco, who shall not have hia 
name painted en his entered piemisM in manner thateia 
mentioned, or who shall mano&otuTe, deal in rotuL 
or aell tobaeeo without taking out the Uoeiwe required 
tar thrt purpose, do not avrid a contract of mle of 
tobacco aoad* by a manufaotaasr or dealer who baa 
not complied withtlte nquisitMof these secttons; thrir 
effMt is merriy to inH»oae a penalty en ^e oflbnding 
party, Ibr the benefit of th« imane. [MaH^e, J.— Thia 
la net a qaeatioD whethw a ooatraat of aala ttf exeiaa- 
aUaUqanaauda between NewnMnaodhiaeieditefBoan 
baawOdad. Tha Court, hi amUk t. M mwhtt i , apeak* 
lag aaonadai aabjaetaai matoriam, dedd* tiad audi a 



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64 



THE JURIST. 



contract is not illegal to that extent. In that case, one 
of the parties, the vendee, was entirely innocent ; but 
the qnestion here is, whether people mar enter into an 
agreement to evade the law. J^tttk t. Mawhood is no 
authority for saying that they may. [ WUde^ C. J., re- 
ferred to Armtnmg y. Lawu, (4 M. & Scott, 1), in 
vhioh it was hdd, that a contract made between two 
9r more perstou to enter into a partnership in contra- 
Tention tn the law is void, and confers no rights upon 
oitber party.3 The principle here contended tn is 
expressly rec<^ised by Tindal. C. in Redmond t. 
Smithy (7 Man. & G. 474). He says, "The 4th sec- 
tion of £ & 6 Will. 4, c. 19, enacts, that, if the mas- 
ter of a ship do not comply with the previous requi- 
titions, he shall be liable to a penalty; but it is nowhere 
sud that such non-compliance shall make the vorage 
illeffsL" So, in Cunddl v. Dauwm, (4 C. B. Rep. 
376), the distinction between statutes which have for 
their object the raising and protection of the revenue, 
and those which are directed to the protection of buyers 
and consumers, or to some object of public policy, is 
clearly recognised. The statute now under constder- 
9tioa falls under the former denomination ; and, within 
the principle of all the eases, it does not render this 
agreement illegal. Either the leuned Judge should 
have so told the jwy at the trial— and the point arises 
on the ground of misdirection — or it appears npon Uie 
record, and the objection is properly taken on a motion 
for jadgmeot non obstante veredicto. Another point 
also arises as to the form of the third plea : it states 
that the agreement was entered into with the express 
object and ioteoUon of " enabling the said Newman to 
sell and dispose of" &c. Assuming that the act is 
ille^, if he is only enabled to do it, be may forbear to 
do it or not, as he pleases. To avoid the contract, the 
plea should have stated, that it was entered into for 
the express purpose that he should positively do the 
illegal act. In Hodaton iod Othert v. Temple, (j Taunt. 
181), it was held, uiat a person who sells goods know- 
ing that the purchaser intends to apply them in an ille- 
^ trade, is nevertheless entitled to ncover the price 
if he yields no other aid to the illegal transaction than 
selling the goods and obtaining permits for their delivery 
to the agent of the purchaser. t/oAfiMn and Others v. 
Hih2ioii (11 T. R. 180) is to the same effect. [ Wilde, 
C. J. — In Hodffton v. Temple^ the vendor was no sharer 
in the illegal transaction. Tlie plaintiff here seeks to 
recover 4l. a week, contracted to be paid to him by 
Newman as a remuneration for hia share in a transac- 
tion which is proved to have had for its object the 
enabliiw Newman to sell exdsable liquots without a 
license.] The cases on this subject are collected in the 
notes to Wms. Sannd., yoL 1, p. 309e. 

WxwE, C. J. — It seems to me, dut the present ap- 
plication should not be granted on either of the grounds 
relied upon. The first part of the motion is for a new 
trial, on the ground that the evidence did not warrant 
the verdict. The defendant has pleaded, that the agree- 
ment upon which the plaintiff relies was made for the 
express purpose of enabling Newman to toke the room 
in order to sell and dupose of therein, by retail, excise- 
able liquors without a license, contrary to law, and that 
Newman did so. Besides the agreement itself, it ap- 
peared in evidence, that, in one instance at least, an 
excise permit was made out in the plaintiff's name for 
liquors supplied to Newman upon the premises in ques- 
tion ; that the plaintiff was ficenaee of the premises ; 
and that his name appeared over the tap door. No 
new license was ever taken out in Newman's name, 
nor any snrrender made by the plaintiff of the or^nal 
one, but under it the trade cmitinoed to be carri^ on 
as before; and, while it was so carried on, the rent for 
the premises fell intoarrear, and thisaction was brought 
to recover compensatitm from the defendant as surety 
fin Newman. Under these dTCQDUtanoci^ it seems to 



me, that the jury could have come to no other coit 
elusion than that to which they have come. The se 
cond part of the motion was for judgment non obetanfa 
veredicto, on the ground that the third plea disclosd 
no defence to the action, for that it was not illegal U 
enter into an agreement with the express object ant 
intention of enaUing Newman to retail upon the pre 
mises exciseable conmodities without a license. Tbi 
contract relates to the sale of spirituous liquors; ani 
it is well known, that, to auUumse sneh sal^ twt 
licenses are required^— one under the excise law^ an< 
the other under the Magistratee* Licensing Act. Tht 
latter has no reference to the revenue, but wai 
introduced solely on the ground of public monls an 
public duty. A license u not granted by the magia 
trates without inquiry, first, as to the exigendes o 
the neighbourhood; and secondly, whether the appli 
cant is a person of ^ood fame and character, so as t< 
give reasonable security to the public that his busines 
will be properly conducted. This plea says, that thi 
object of the contract was to enable Nevrman to eradi 
tliu law. The remuneration sought to be recovered i 
part oS the reward the plaintiff was to liave tm ensUini 
Newman so to carry «i the bnriness as to evade th< 
law; ud I think, therefore, that, as the law requires i 
license not only for the protection of the revenue, bu 
also for the protection of public morals and safety 
this contract was ille^tal, and the phuntiff is not entttlet 
to recover upon the plea which raises that issue. Tlu 
conclusion is not contrary to the cases whidi have been 
cited. Smith v. Mawhood a not in point ; and I do not 
mean to impugn that decision. In the present in- 
stence, I think the plaintiff has no locus stan^ in a 
court of justice to enforce his chum ; for he cannot 
enforce a contract entered into for the purpose oi 
enabling a person to contravene a law pasud for the 
protection of public morals; and I cannot conorives 
person more instrumental in furthmi^ this illegal 
object than the pUuntiff has bem, in furnishing New- 
man with a room and a license, in the pUinttflrs own 
name, to enable him to carry <hi the busiiies. There 
i^ tlierefor^ no ground far graating a rale fi» jn^ 
ment non obetante veredicto. 

CoLTHAN, J.— I am of the same opinion, and thbk 
that this agreement was In eontravenuMi not merely of 
the excise laws, but of public policy. If so, the statute 
not merely imposes a penalty upon a person who retails 
exciseable liquors without a license, but prohibits, and 
makes his doing so ilU^l. Armstrong v. Levit is in 
point ; not, indeed, as to the matter there decided, but 
in this — that all the judges were of opinion that an 
express agreement in contravention of the law is void, 
and confers no rights upon either of the parties to it 
The present af;reement seems to me to fall within that 
definition ; and is, therefore, illegal. 

Maule^ J. — I also think, that this agreement was 
entereil into to enable one of the parties to evade a law 
passed for the protection of the public morals snd 
policy. It is said that there is no autliority deciding 
this agreement to be illegal ; and a distinction has bees 
made oetween an agreement expressly requiring a per- 
son to do a particular thin^, and one entered into for ttie 
express purpose of enabkng him to do it ; but Mther 
may be in contravention of public policy ; and those 
cases which say that such agreements ore void appear 
to me to be authorities governing this case. 

WiLLuio^ J^I agree, that Ais was a contract en- 
tered into in eontraventiim of public policy; and tbst 
such a contract is not to he made the subject s& 
action.— J2»/« refused. 



THE J 



COUBT OF EXCHEQUER^HiuRT Tsur. 

Codc Wm Ta» Mnmiro Comrm Rahwit Compakt.— 
Jm. 17. 

RmSmmf CM^mmjf — C^mirafiM— CWrocf— Q^Smt--- 
Nt^igenee. 

AfiiB- • KmSw^ Com^amjf teat iMcorporeOed Ijf Act of 
riirB— f, «s Aeetdemt oeeurred to a FoMHitgtr <m 
A* Imm m e m »e jm m e€ t/tis I^Mfumee e/ One <^ tie 
■ffi I Mirfi l*« C%Muaiyr:— ilit/;^ tkat tuithr M« 
Jhy M i fr iwi- , rttiZa»/iii»yQW«fatrt«)S»Brtmiwtwy 
tti* Im£ /2kc^ wr JS^weruaemdemt of TVo^ 
flyhiiif had t«plted AvthorHgf to mate Qmtracte 
■ Bfjlmj « lie Cemmamjf with Mtdieal Mm called in 
«» atmt tie inptred Permm. 

emek aa ddioner aM^Af be inferred from tie Conduct 
^ dU Direaan ef t£e Compamj/ on former Ooeatione 
m neeaiiamg e iaril a r ContraOs madelm tieir Ofioer$; 
m- peAafe from Evidence tiat emci Powere were 
mmlfy eaaiiaed bf eimilar Agentt of eimilar Com- 

Thia nw m action of Hiompat for anrgfcsl st- 
teitest m fo&niuDff the oMraUoa of ampntatioD, 
IsoBgtA ignal tfae MiiUaiid CoDDties Railway Com- 
MBf , mttrftnimi by act of Parliament under the fol- 
wamag ti'ii iiwiJmiii u which appeared in eridence on 
tk inri Mm Manle, J. At the Whittaker station 
«f At a labourer of the name of Higgins, who 

aa>alUrd-dMipa«cag«r on tba liii& msgettiiig into 
a track Ij the dnrectton of one of ue ofScm m the 
Cemfmj, wfaoi the aignal for the trun to go on hariog 
bM ^«ra too fon, he was thrown down and the 
vfcMli weai vnr his 1^. He waa picked up and taken 
taanalfchliuiiiiiij^ pnbko-honae, and the railway gaiard 
iHMdntdy ordieied Ur. Davis the usual sargeon of 
the CepaBT tbcra to be called in. Davis came and 
food Aat the man belonged to a rick clnb the mem- 
bos «E vbkb he li*d contracted for to attend ; bnt 
deoug ^ ease a aerions one he sent his son to ac- 
oBBt the station- master at Whittaker that he desired 
nrfbff aMtaoce. The staUon-master - resolved to 
es^Mnrate with his soperior Uie superintendent of 
ft* ttKw^Bag d^artment at Birmingham, and after an 
aAebail attempt to work the electric telegraph sent 
T«M| Dam to Birmingham by qwdal tmin. The 
in iiliadiM derired that every attention should be 
ftii to the ana, in oonseqnence of which the plainUff 
aa eanaort hsi^ital anigeon at Birmingham was dis- 
pfah ej by qtecial tnta to Whittaker, where he per^ 
OBrawd the operation in question. It was shewn that 
m thzeb kria» oecarions Uie Company had paid the 
b3B ef oths Bugeons for attendance on persons injured 
m tbarlia*; bat it did not appear by what servants 
the eidoB were given in those cases ; and indeed one of 
bad eeenrred when the present Company existed 
» the Derby and Birmingham Railway Company, 
aact wHA H had bea amalgamated with some others 
ato ib p w catn t form. In that case a panengerand ser- 
mit me iajarcd ; in another of Uie cases a iwlway 
Mimt WM injaxed, and the nature of the third did not 
deailj sppear. On this state of facts it was contended 
hy ^ foaneel for the defendants that the Company were 
net lia^ in this action ; on the grounds, first, that none 
•f tkoT eficeis woe empowered by the Company to 
ests into the eoatiaet sought to be enforced agamst 
thcB by the plnntiff ; and secondly, if they even were, 
tint the Company being a corporation could only ctmfier 
power by deed under their common seaJ. The 
ji4g« nserving leave to move to enter a nonsuit, left the 
<IK to the jury, who found for the plaintiff. 
^^0^ obtained a mle accordingly in Easter Term, 
^Hiwssamicdat the sittings in oano after Hiehael- 
■MtsK he&n Bufce, Bolfe, and Piatt, BB. 
iriitimm ami Segm ihewed canie^The geneial 



UBIST. es 



rule of law undoubtedly is that a oorporatlon can only 
oontnwt byinstrameni under their common Mai; bnt 
this rule b luMeet to exertions. Two bam haul re- 
cognised tnm the earliest times, vis. first, that where a 
corporation have duly appointed a servant they are 
bound not only by all acts done by him within the or- 
dinary scope of his authority, bnt in matters arising on 
sudden ememncy and urgently requiring immeaiate 
attention, when the want of such attenuon would be 
productive of 'injury to the corporstion itself. Thus 
the servant of a corporation may without express au- 
thority dirtrdn cattle darawe feasant, as otherwise they 
would escape : {ifanbjf v. Long, 3 Lev. 107)> So where 
a corporation are bound to repair a sea-nll, and the 
sea suddenly breaks in, so that unless the wall be in- 
stantly repured the conntry would be inundated and 
the corporation oompdled to make oompenntion for 
the damage, their b^llffon the spot might endeaTonrte 
save them from it by ordering persons to Tepair the 
wall. The law is thus stated in the last edition of 
Com. Dig. ** Franchise," (F.) 13, note (w) : " Some an- 
thoritlee go so for as to say not only that no servant of 
a corporation can be appointed without deed, bnt that 
without it no command is valid to do any particular 
act ; others with more reason say, that admitting that 
no servant can be ^pointed without deed, yet when he 
is once appointed he may do everything incident to the 
nature of his service, not only without commandment 
by deed, but without any commandment at all for 
which is cited 1 Kyd. on Corpor. 260 ; 4 Hen. 7, 6. 13. 
17 ; 7 Hen. 7, 9, Secondly, a corporation may without 
deed or writing give ofHumand to do certain small mat- 
ters not WOTtn the tnmhle of one ; as for Inatanoe 
to kindle a fire, make a distress &c. In an Anony- 
wunu eoM, (reported 1 Salk. 191), it is waid that a 
corporation ^»r^te may without deed or warrant 
appoint a baihff to distrain as well aa a cook or butler ; 
for it neither vests nor devests any sort of interest in or 
ont of the corporation ; and that it was so held inter 
Gary and Matthews in Cam. Scacc. A third class of 
exceptions has spmng up in modem times, by which 
the officers of trading corporations have power to do on 
behalf of those corporations all acts reasonably necessary 
to enable them to carry on their business : (Yariorowh 
V. T%e Bant of England, 16 East, 6; Hall v. 7%9 
Mo^ of Swanaea, S Q„ B. Rep. 626 ; Eeverlgr v. The 
Lincoln Oat Light Company, 6 Adol. & Ell. 829; 
Ciurth V. The Imperial Oat Lighi Companw, Id. 846). 
In Qibaon v. The Eaet India Company, (5 Bing. N. C. 
270), Tindal, C, J., after stating the general rule that a, 
corporation aggr^te can contract omy under its com- 
mon seal, but that on that general rule, both in ancient 
and still more ftequently and largely in modem times, 
have exceptions been grafted, goes on to say, " Our 
attention must be more particularly directed to that 
large class of excepted cases which has grown up prin- 
cipally in modem times, where the contract which has 
been entered into is one of which the allowance is 
necessary for or inddental to, the carrying into efleet 
the very pur|K)eea and objects for which the corporation 
itself was originally created. .... Where a company 
is instituted for the purposes of trade such company 
may, in matters of frequent requirement and small 
amount, make a valid contract relating to the trade 
which they carry on, without affixing the common 
seal, although such comoration be a corporation aggre- 
gate, without a head." Now we submit that the 
servants of this Railway Company had power to bind 
the Comfwn^ by their contract with the phUntiff, both 
on the principle that the making it was an act done 
on urgent necessity for the benefit of the Company, 
and a&o that it is the act of officers of a trading cor- 
poration. If the wounded person were not attended to 
ne might die, and the Company would be liable, to his 
<aEeeat<Hninaaaetionimder9&10Viet.c.93. {JSmtr- 



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68 



THB JUBI8T. 



tlwt statute came into opwfttion, and 'ONwe^veatl j that 
the CompaBf had a fotiiuM iateicat ia the death thaa 
the li& of the party.} At ^1 ereote th« principle will 
aapl/ to fntore caeea ; heeidM which, if the neoeawiy 
wtMition wese n«t gireii to ^ msa a eonmer*s wiy 
might letuni a rer£et of tBandawhter. C^'*"^ — 
Not luaiiut the Con^Muiy; hat againet th«r offioer« and 
the CMBpany m^^t sot can for that.! In coaalderiiw 
the extent to whidi theee exeeptaoiu wMold be «aa>ed, 
all the ttrcaaietaoees of the case and id the age la 
wUeh we live aauot be taken iato coneideiatiiim. It ie 
£he vnifonn jpnetioe of nilwaj oompaiuee to eontnet 
wjChottt deed Jbr the oarriage of paaeengera w their 
linee; and it waa in the attempt to carry ont one of 
these ottBtraole that tliia aoeident arose. Agahi, a case 
like the meseat aonld not hare eeeurred vintil rery 
modem tunes; for railway tamlling ia altogethw a 
modecn system, and diSen in theee two important re- 
spects frotn the old one; first, that incorporated railway 
oompaiues act by a beard which «aaBot be eaUed to- 
gether to affix a seal wHbont certain notices and some 
deiav ; secondly, that a railway differs {ron a highway 
in this, thM the latter is free to erar one but the 
public are tre^iasserB if they go mi the formw without 
leaTe; ao that in the arent of an accident no per- 
Bon bnt tiio tnunediata serrvita of the Company w 
oHker pasHngezs oonld randor any asrietaaee, the la^ 
ter of whom an net hem i to render say, and the 
former who when a train is en its route are the drirer 
fireman and gnard might be £sabled themselrea and 
inoqiable of doing eo. When u aociduit oeoun on 
a line of railway there an aaany things which matt 
bo done immediately ; as fi>r instuoe to remove broken 
eaziMgea and rails, or to mend them so as to enable 
the ^oamey to be oontinaed. Or suppose a case con- 
taiaug valnable goods w«re injored and could not go 
on without repair, or a horse injured himself ia a 
horse-box, the officer on the wptti most have aathonty 
to order case to be reiadred, or to call in a vetan- 
naiy soigeon. [Pon^ B.— -The mle res^ecyng tiie 
aaoeaaity of ooipontions acting undw ttuur oommon 
•sal was fnlly eznMnad by tiiu Conrt in the esse of 
2»«Jr|9wrejf £iiAbwT.dMM,(« Mee.&W.a23), 
where it is said that it is a great nustake to suppose that 
that role is a relic of ignorant times, and that attempts 
to get rid of it except in the oases pointed ont by law 
might be prodnotire of great ineonvenience. Now ac- 
cording to yonr argument, would every servant of this 
Company, the station-msster, the guard Boa. down to 
their common policeman, have power to bind them 
by a contract like this?] No. The station-master 
would in the fiat instance be the proper peioon, bnt 
in the present case not deeming his authority suffi- 
cient he r^Kirted the matter to hia snpenor, 1^ 
whom the order was giv«n. The power <n these oi- 
fioera is limited to dtdn^ what lias withdn die lunit of 
thew employments, and la nasonably necessary for the 
benefit tn the Company. Suppose a passenger going 
in all haste to a sea-port witn the new cH embark- 
ing for America, having with him a quantity valu- 
able jewellwy, if the package in which it was contained 
bec .me damaged by an aoeident so that it coald not 
with safety be earned further, the station master &o. 
might not have authority to asnd for a jeweller to Lon- 
don to put it together a^dn. [Pantr, B. — Soppose an 
accident were to happen to a etage-ooach ; woald the 
pro( lietor be UaUe for oootracts made on the spot trr 
uw coadimaa wHh die view of repairing the misrauefr] 
That d^wnds on (droumstaness ; if a micb-pin eame 
ant of a wheel it wonU raqoin imnadiate nttwtion; 
and at all earenta the aoachman idgfat do aa was dana 
hen, report to the effioer at Ike oAoe, and ask far an- 
tiuotty toaot. Bat on ihe 'Other point, even anpponni; 
lteiitetanantharilywth]Biiaibaamiita«fl^<^ 



puiy to make oootracts like the raeaent cannot be k 
plied by law, the condnot of the Company on tiie ttr t 
previous oo ea wans is avidanc*^ eapaaiaily in the aknn i 

of any coonter-evideneek off wir havbg confemd : 
It is not sufgested that the operation perforoud 1 
the plamtifrwas unnecessary or that the chaig« for 
was unreasonable. 

MaeemU^ in saj^wrt of the rule, amied, that I 
cases in which corporalSons were oiabled at coma , 
law to do small aets withont deed, must be nndenti 
of cofponUons aggngate with a head; that the n.; 
position of the oppoaite aida want to tiiu length, n 
eoery serrant of a nQway company through vk 
n^Iigence an aoeident has ooenrrodf can make oontan 
to oind his emploj^ers witb any persons whom he ■ 
deem right to call in to remedy the mischief. It mf| ' 
as w^ be contended that a gentleman's coachmu v 
drives against a carter and tqjnTM him| might on ( 
spot employ a medical man to cure lum, and pM 
his mastei's credit for payment. \_Rotfe, B. — Oi n ' 
pose a lampnghter bums a person so as to coose bi ' 
serious ioj urv, has he or any officer of the gas comps 
power to piec^ the cmdit of tiie oampa^ for has cut 

The jodnient of the Court wna now ddirend br i 

Pakkl B^Tfals oaaa, lAidt waa an ae^ « i 
sanmdt for nedki^ attandanow, waa tried belbn i 
Brother Manle, at the laat Snrii^ Aanaea Ik Warwia i 
The learned jn^ge raemd leavo to mm to este 
nonsuit. A role to tbew osnse having been gnmta 
the case was fuUy aigued at fbe uttings after hist un 

The fikots appeared to be these:— One Hisgin* 
labourer met with an accident from the moving of > 
truck on the defendants' nulway. The ^*>7J^ 
apfdied to a Mr. Davis, a surgeon in the neigfaboonow 
he found the ease a serious one, and wished to have a 
aeristance of the plaintil^ an eminent ho^dbd aoigeo 
at Birmingham ; Us son informed the 8tatio»4naM« i 
Birmingham, who had aeoording to the evidoioe aete 
as chief offioer there in the passenger, and indaid i 
ovary depattaent, who daiirad that every tttenno 
should be paid to the van. Tfa« plaintiff was tooori 
inriy wanaat a d by Davio to peil£nn the opention< 
ampntaUon, which ho did sqBewsfliHy,and In this ag> 
aonght to rocover uHnprasation for that service mi 
the Company. 

If tlie station-master was authorised to enter ml 
such a contract, there is no doubt evidenee to go to u 
jury that he made the contraot on which the actio 
was brought. The piMpal qnaation ig^ had h»«H 
authority t 

The learned oosnsel for the defendants contende 
that they wen not liable, because being a oorpon^ 
tb^ oould only oontraot under their comHion sea 
To which it was anawerod, fint, that a 
aggngnto nunr giva penonal oommand to do naall an 
withoMt deed, a^ to wlafai a servant, cook, or btttlei 
for (wdinaTy servioe, and Umt the apeciee of empl^^^ 
of the servant who gave the order to the pl»J°5r_« 
under that deaoription, and that he was autborisM nw 
the nature of that employment to bind the oorporatio 
by SQch a eontvaot m wonld be inf eired from that ordei 
and secondly, tiut if the corporation conld not bu> 
themselves ay soch employment and the contract mo 
dent to it at common law, they could by virtue wU 
statnto constituting them a oovponUon for the 
of constructing and malntaini^ a railway, and if hH 
thought proper, of oaRying on anon it the trade «o> 
riersofpaBBsngenand goods far h^; forthmrtmv 
be incident also to sneh a oorponitien to t^p^m'f, 
Tants of variona aortLod on fafisMnoa to the act < 
Pariiament than no -donbt they bad this p^ 
and pnibaUy witbont «n Instnmwnt of appotetsoM 
under sealt and that ««nridarfaw -the nature of !«> 
md tniie anih «f Hhn mA had. « 



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THX JITBI911 



fl7 



W teat^ywBt, ■! — ti w ritj rt far cue anytlniig m- 
iMMi wb* wvoU W j/nimiUM to Uw hrtiNito 
if lb* Compuy to do what wat wwitly ftl to W 
in* ute Um dmmituM^ t* nmtiy or lUmuiiBh 
&• ilwni|T dene. It wM contcaded thoeforer that if 
mm «f tbew semoto hqipemd to be nav at the time 
\ iT&e of as onbuikniait which for the pnipoee of 
1^ ale i>d Rieedy tiafic along the railroad 




X,: 



>M iam«>iiatdy lemored, he would hare an 
iHjl'ii ?i mlmitj when freih hdMureis were required 
to BiBd theCoinpuiy by a conttact to pay them: and 
l^ia EbBBDeray serrant who was near or at all 
thikad Kmntof the neanat station, would be 
Mftariatd if tpMMigcr received personal damage re- 
qwiug iiBB(£ito lanieil attendance to contract with 
a wngeobyVi to Mm the Company 1^ that contract 
to^if ^wrnnmUy due to Um-^nwh authority 
I natet to bis emploviMnt eouddering its 
nitsit, ud it being for the bniefit of the Com- 
tte ham td eenieqaaat lentotheos iroai 
» fgriArieb tW wera m y aibie riMuld 
aitifrtcdaipoMlble. 

, it WB MotaMkd f» the plaiatiff tiiat if 
HtM^ nsnot Incidental to the employment 
rfi»iaiM«rait, there was eTidenee m this case of 
ito^rag baa Bia by the directMB, on whom the 
mmaapmm i m beaoMs ef the Compaay was by 
^tttiiHAaaA ertablisbfaig it oonfaned. That 
w' dw n f p e nriaf j a parent by uie Company on three 
''^'"iHaat rftbebUb ef snmoiu, not of the plain- 
aOcBdii; poHoa who bad been hart on the 
_We iBtnuted mr opiidoii in the conrw 
flf tte naaarat, thit these instanofli of payments 
did met afcrd nffident eridenee to go to ttie jury of 
%9faaA aBtfcoritf to nafee the coatnet fai qneaUon. 

«f tke x mH i of p^meat waa tte eaae of an 

toflsmaAyiadtea pasaeager, befoR the saU- 
iapd to the dtfandaatL the seeaad was on 1b« 
'l^^toa mlvsy- anvaat, the thM was iMMrtoiii> but 
flit fasNaaAir aKraats pen the oidw in each ease 
Ml apfttf. Time paynunts wen mUim» of an 
■fcrffj gtff to''tfcc ■srraatonlio wto the orders, to 
lAs Aaae pa stfcu lar eeotnMta. If they were evl- 
lase o< a fCMul aath«ity to tiKM particular aervanta 
li aahc saeh eamtawtii Uwy were certainly nat eri- 
4asi e( a ndar gencnl aathority to aU their servanta. 
It ii «Maw tbe Companj mq^t diooee to antmit 
in* amaf adi power and not another, 
n* ^MrtwB tierefore does not turn upon theae epe- 
■laemtoBce^ bntd^andsMi tlw asthoiity <tf the 
■rami vhegan the nder. 

Oa the p«t af tba deftndanto it was iansted, that 
iMiOv at csmsB Uw Bor wider the statute was such 
I p e w arp'f te the oerporatiea as to bind themsdvas 
by tbii mtiaet. Thai the aommra-law power was 
faaalrd t» a osiporation with a head, to do small aota; 
tbst Ttnsth this statute might gire this corporation the 
fOOTtBatar hdo aame contiaets, and Uie power eren 
l»spp«Bt sMsa aervaoto withost deed, in toe maoage- 
af iu cgeuona; jretUw aathority to Miter into 
■A etraels aa thk mth a aoigao* was not an inoi- 
daAto fta cB^fnraaeiit! the aamat v4io made it: 
■dttbisiaMb the coiypolBt la tke caas. And 
WOTsIlef epinioathatthiB powwto antor into this 
ms Boi iacideat either to tk* omploynunt <^ 



&iasisd er a^saintMrisnt, 
ttsBB ' 



I aisfh ssnyloymaat of aswanto by a oorgoiation 
wrpa% ea a basmass, eaBnot glTe them aa hwident to 
M^kTseat a larger aathority than )i the same 
MatMBt were made by a partonship ef as naany 
uiiiiuli as the sharAoldeia of the Cwapany ; nor 
Iwit^pMrto aato aiake aoydilfereBce that it is 
csinAtal^fiewer membeia, or even by a nngle indi- 
liM*. tjartnenhip of many irtio do not mean to act 
paMrij k thff-flMHpBMHi-Ml own a&in^ aa 



an individaal or a partnenhip of a limited number of 
acting partneiB doe^ mM thtnk it right to inreat soma 
of their serranta wita all «r part tna power and aa^ 

thority of partners'; but suppodng they do not, ud 
tbareisaa DO tTidenea ef snra an aathority in thie eato 
to any but the direeten who pesaemed by stotuto the 
management of the affiure of the Company, the fano> 
tion and authority of oervaata in dlmrent capaeiUea 
must be the same in both eases. The power and duty 
of an engine-driver mast be the same, rimply aa 
such, whether be be employed by a corporation, a 
joint<stoek cMnpany, or an ordinary partnenhip or 
an Indlridnal, all of whom may carry by the rrilroad. 
The drfrer appointed by a corporation or company 
or partnership carrying on the bnslncaa of carriers of 
passengers or goods, must aa snoh have the aame duties 
ndpeweis. It ia not easy to decide whether anftreaaan 
aoeMsnta would ooeor mote freqaently la the earTiaaa 
of passeneis by loeemotlve poww on railroads, or in 
carrying uie like number by coach ca ordinary roads; 
certaiafy then is do sacfa dlffsrsnee aa to make the 
daties of an engine-driTer and ooaehman different aa to 
Um power of making saeh oontmcte as that fai qneatioB, 
nor the duties of portaro, clerks et other serraBto eo»- 
neeted with the carrying department. 

CetUd ii be maintained wat a eaaehman, from wboae 
oarriiffe a passenger had foUen, and broken his arm, or 
by which another person had bean run over, or a houaa- 
keeper who happened to be near, or the bookkeeper, 
oonU bind his master by a eontmct with a aargeon 
to onn the injured perse* and aUlge Us ma ste r to 
pay the bill 1 We a» of epInloB that ha eouU not. 
Tboagh it aris^t ba a baneit to the mas t er to ham 
the daaaan diminiaked by a speedy oare^ if he wna 
really UiMe for that damMC^ It woald ba a prejndloa to 
him to be bound to if he waa not: and Is tiio ssiv 
Tant to decide whetner his master is liable or not— a 
man whom he has not appointed with any view to the 
exercise of ancb a discretion 7 

We think the servant has clearly no such power. 
The employer of an agent for a particular purpose gives 
only the authority necessarT for that agency under 
ordmory <^renm9tanees; as this Court held in the case 
of an agent to a mioe, where the question was as to his 
power to bind his principala by bonowing money, when 
an emergency arose in whieh it was highly expedient to 
do so, and it waa held he had no such power : (Bawtomr 
T. imm^ 7 Hee. ft W. A96). The employment of an 
agent gives also the powert uflia^ezaxmaed by similar 
i^ents, but there was no evidence of any ns^e in this 
case. We therefore think the Company are not liable, 
whether we suppose the railmir guard or the superto- 
tendent at the stotion to be the peraon making the 
contract. 

It is not to be supposed that the result of our decK 
sion will be prejudicial to railway travellers who m«y 
happen to be injured. It will rarely occur that the 
surgeon will not have a remedy agunst his ^tient, 
who if he be rich must at all evente pay, and if poor 
though a sufferer will be entitled to a compensation 
ftom the company, If they by their aervante have 
been guilty of a breach of duty, out of whieh he win 
he abb to pay, for the surgeon's bill la always allowed 
for In damages. There wiU therefore be little mischief 
to the interests of the passengers, little to the benevo- 
lent soigeons who give ihdr services; but It would be 
a serions inconvenience to the public, if Uie rule of law. 




oompurionato ieelim wli&h it ia ififfioult not to entor- 
tain totrards the sufl^ring party the Dreaent pl^tiff. 
The ntle 4naBi therelna be maw abwdnto.— itaJlf 



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68 



THE JURIST. 



GROWN CASES RESERVED. 

COURT OF CRIMINAL APPEAI;».— Hilaet Tnu. 

IBt^vn hoKD Dehk AV, C. J., Fabks, B.» Aldsbson, B., 
CoLTMAN and Coleridor, JJ.] 

Rbq. 0. Geoboe Bead and Otiien.— ^an. 20. 
AstattU—Oaiuaa of Child of Teotkr Apt. 

A Girlf Nine Yean of Age, contented to carnal Con- 
nexion with certain BoySf Mhe, according to the find- 
iaa <^tha Jury, "from her Tender Years, not knowing 
•RAof ehe tMM iAetit:"-~-Seld, that a Qmvietion for 
common AtsauU^ under euch Oireumtlaneet, could not 
be uj^eld* 

At the Surrey Sessions, held at Newineton on the 2nd' 
January, Georse Bead, late of the parish of Wimble- 
don, &c., Balph Bead, of the same phwe, and J. Bar- 
low, of &c., aged respectively thirteen, twelve, and 
eleven years, wer« charged in the same Indictment with 
a common assault on Eluabeth Ellen Searle, a girl of 
nine years of age. It was proved at the trial, that the 
four parties went into a liay-Ioft, when each of the 
three boys had connexion with the girl, and penetra- 
tion was effected in each case. When the boys first 
began to take liberties, the girldiewed some unwilling- 
ness, but eventually she ceased to oSer any oppontion, 
and apparently assented. The verdict of the juiy was, 
"Gniity, tile child being an assenting party, out from 
her teuer years she did not know wtut she was about." 
The question reserved for the opinion of the Court was, 
whether, under the peculiar circumstances of the case, 
the girl, being of the age of nine years only, actuiily did 
give, or was competent to give, such assent to the act in 
question, as to invalidate the conviction for common 
asunlt. 

Need/iam, for the prisoners, submitted, that, as the 
jury had expressly found that the girl had consented, 
the case of Beg. v. Martin (2 Hood. C. C. 123; 9 C. & 
P. 21S) was conclusive upon the subject. 

JRobintoHf for the Crown. — The verdict is one o^ 
"Guilty.** [LordDenman, C.J. — The findinj^ is, that she 
had consentod. Aldersm, 6. — From the evidence, the 
jury might have found the prisoners guilty of an as- 
sault; but on the case no oflRence at aH is stated. Lord 
Dcnman, C. J. — The only point for our consideration is, 
was the girl competent to give consent?] The pre- 
sumption of law is, that a child cannot give her consent 
to any act injurious to her. The policy of the law is 
to protect those that cannot protect themselves. The 
Tcnlict is^Gnilty;" if you go beyond those word^ yon 
must take the foct, that the nrl anented, with the qua- 
lification, that at the time she did not Imow what she 
wasabout. (R. v. Saunders, 8C.& P. 265). fParie, 
B. — ^The point is decided in the case of R^. v. Martin.'] 
In R. V. tVilliams, (8 C. & P. 286), there was actual 
assent, but a conviction for common assault was upheld. 
This case is the same as if a fraud had been com- 
mitted. If a child were voluntarily to give a sovereign 
to one that asked her for it, and tnat person kept it, 
could there be any doubt that that would be larceny 1 
In this case the finding of the jury was, that the child 
was incompetent to exercise an independent wUl ; by 
reason of her tender years she did not know what she 
was about— she was an automaton. Under the cir- 
ounutances stated in the finding, her assent amounted 
to no more thau if she had nodden in her sleep. {Vble- 
J. — But the jury find that the giri was an as- 
senting party. Parke, B.-~R. v. Sanies (8 C. & P. 



* This couri, conititated under 11 & 12 Vict. c. 78, is so 
■tyled in the official notices posted ia Westminstor Hall. 



074) and R. v. MerediA are cases in pwnt.] Hen 
finding of the juiy aa to assent is leBtnined by 
latter part (tf too verdict. 

Lord Tissuks, C. J.— I hope cases for this 01 
will be reserved in clearer terms than the present ^ 
I think that the prisoners might have been coiiTit 
of an assault on the evidence, when the libeities i 
the ^rlwere first taken. When, however, then 
been express consent, it has been solemnly oedM 1 
there can be no conviction for assault. 

Fabkb, B., Aldebson, B.^ Coltmah and Counm 
JJ., coneaned.-~CiwMe(toii placed. 



COURT OF ADMIRALTY. 

The Tbcukseh.— Jen. 12. 

Monition, granted against the Obligors in a Bcni 
latent Demands, at the Suit of a Seaman elaimiiiff 
Balance, after receiving a D^idend on aceotaa of 
Wage$ out of the Bttate of the Owner cftie& 
wider 2^3 Viet. c. 41. 

The ship Tecnmseh was originally arrested and i 
io a cause of bottomry. The whole of the proceeds ' 
taken out by the bondholders, who gave the usual bi 
to answer latent demands. 

Bojfford now moved the Court on behalf of A. Ton: 
one of the seamen of the ship, for a monition assii 
the bondholders and their bail, to shew caose why 
should not be admitted to propound UsintetMtBiF 
the proceeds of the ship. 

It appeared from the affidavit of the seamui, tl 
his original clum was for a balance of wages, amoonu 
to \%l. 6s. 0^., and that, under the Scotdi Banknpl 
Act, he had received a dividend upon the ownei'a est 
of 10/. 10«. ; but it was argued that such payment i 
not aflect the claim for Uie remaining balance, by reil 
of the provisionB of 2 & 3 Viet. c. 41, as. diS, 37, i 
that tiie demand was one <^ those comprehended vnl 
the dedgnatioi of latent demands, for whldi the m 
was given. (See The Tecumseh, 12 Jur. 986). 

Dr. LtwHnraroiT.— This is an application for ana 
tion to shew cause why the bail should not bring in * o 
tain sum of money, in order to answer the demendi a 
sailor, and I have made up my mind to allow the mo 
tion to issue. It is a claim by a carpenter for ""S^^ 
he demands payment out of the proceeds, which had w 
handed over to the holder of a bottomry bond twe. 
months before. He has made an affidavit to shew u 
he is not prevented by proceedings which have tak 
place in Scotland from pursuing this course. " 
davit is unintelligible and unsatisfactory. Heflvrei 
that, under the 37th section of the act relating to Scot 
bankruptcies (2 & 3 Vict. c. 41), he has leserred I 
hypothec or lien over the vessel, and, after receivinfi 
dividend from the esUto, claims the balance ftom i 
ship. But here a question ariees on the eons^<:uon 
the bond ^ven at the time the holden of the bottoni 
bond received the value out of the rMjstiy. It is calJ 
" a bond for latent demands." Upon the nature^ 
that bond the Court had occasion to comment m i 
caseof 7%efiiiro«B,(10Jur.396). I have looked oi 
Clarke*8 Practice, and the impression on my nund 
that the bond was given to protect the Court and t 
parties entiUed to the very property proceeded ««« 
and adjudged. However, I shaU allow the momUon 
issue ; but the party proceeding must be foUj 
that I consider this in the nature of a novel expwiw^ 
and if he fiuls, he will as surely be condemned mu 
coats. 



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THE JUBIST. 



OOUfiT or CHUfCERY. 
liOEaoB «k Tn Horn Vaim Railwat Compaht/— 

^ fft i li' l i J rtt /V fa u »fci faW fa Kiik*. 
TWOMribHoTtlM BfonkT- Uaiim. (S PkU. 640; 

Itriwi t p m to € J i —w ar/br wwrt Eqni^, 
W i w i IlJ an • hmrt AlUgaHtm that <*« Dt- 

idaf tm iMUJ hf tie ^otgttM. 
ttmf Bta Dmmrrer a rnvml ti t Joet mtpr*- 
tiktD^mimtt Bigkt to appeal fnm the Deei- 





T)uB VHUippdlfaom the dedaion of Knigfat Brnoe, 
▼.C^nmfiBg ageaenl dtmaner for want of equity, 
JOmI Ipjr tb« Cmfuij to the plaintilTs bUI. The bill, 
B filed OD the 3id July, 1848, after statinfi; the 
^ Ibe North Wales Bailiny Companr, and 
: of aimtwrneats to reo»r« tenders tor the 
«f cartun woiks, the uieeifieation plaae 
1 4 iHueh wen made out by the Company's 
! Jiha Ramie, proceeded to eet oat uie 
— « Weti:— Tbit the pwntifl^ in consequenoe of 
tedTBrtiaB^iDdhaviiiffhM a copy of the plans 
■MtilnkjSr JidinlUniiicL wrote aod amt, 
«■ tihe Jtt Kmuj, lUfl; thelhUoiraig lettar 

Wda Balhnrv-TaBdir ftr wwfci fhom Bmh 
gvttCnumii. 

•T^fteMiectoaof the North Wales BaQway Com- 

pany. 

<*F«bnuu7«th,1846. 
"GadfaHMO,— Ibndij uidertake to nuke the Use 
Ta^^faadiitaet of eight miles and fiT»4ighthfl 

^'itotheptai,aiidtoUiea*tiifcctionof 

' r a donble line of work% aad movid- 
land keys, points ana crcM»< 
ttd MiMiSag, for tlie sum of 141,000t, 
i VMS to le dune in a oomplete and workmanlike 
Bi finiibed by the 31st July, 1847; for a 
tol«odDuidaa]|flpi0 line of permanent way 
it viQ bt one hooated and fifteen thooaand 
S^f^'' ^ » angle line of worka and a 
ne sfpoaaaent way the amonnt will be 
•w«adiNniiids--88,000J./ the amount of 
^ hmund pMuds, proTided for ataUon, 

t» un tiaen to adirf b^re-mentioned nmmiTiti 
I aa, gatlemaD, your obedient serrant, 

THOMlfl JACK8(Hf 

n^brbwardtd tbe plans reerired by him from 
flkMiJUawHhthelaet-meiitioaedletUrr; and that 
«■ tl»J6tt Abniary,184e, Sir John Rennie, on be- 
laTififaCb^^y.inmtoaDdaaiittotlw^atBturtike 
Utngbttati^ 

"Hfltth Wales Bulway, 1^ AdanHrtreet» 
Ifith Fehmaiy, 184B. 
"Jbeg hmre to ialbim yon, that the North Wales 
Bolvif CoBtpt^ hero aooeptea your tender, the board 
111 il^ to tonaelna the power <rf hereafter deter- 
aiaSm BWhTr ■ donHn nr n lingln ifnn of irnrVn nbfiTI 
J» ai^ted, I Authar W to mform yon, that the 
y^Srmtxmami i wl£ to hare an uterriew with 
jm m Iknnaaj next, and I will thank you to make 
^^ge^aat to attwid— the boor of meeniup ahall be 
^tojvv- I wQl thnk yoa to acknowle^ the re- 
^tAotAdmietter. I am your obedient eerrant, 

"JoHirBBinfiB. 

Jaifafn, FladloD. 




■p.ft^ wfll ttok yn to—kaewMge the leeeipt 
TouXm. d 



l^the pblntiff «ofcwnrMMd the nealpt of thk 
ktier, and attended the hoaid aoeoidiagly, and wm 
thw mfersaed, by and on behalf of the Comwnur, that 
Sb John Bennio had been IhUy nid duly anttuffued to 
aeeept the tender, and to bind the Company by the ao- 
oeptanee thereof, and, though eontaiy to tne net, that 
the aeeeptance of his tender had been acknowledged in 
writing, agned by two of the direeton of tlw aoid Con* 
pany ; that between the reeeipt of the letter of Febro- 
ary, 1846, and Blay, 1846, the pUntiff expended laige 
aanu, to tlie amount of neaiiy 40002., in pieparing miH 
teriab, &q., and that he did the whoto of this wiUi the 
knowlec^ and aoqnieeeenee of the board of direetoa of 
the Company, ana those who acted in the maaagemuit 
thereof and in the belief, ae had been r^neeeated tohia 
by and on behalf of the Conpony, that they had legally 
boond themielTeB by the aeeeptuwe ^ the tender, oiu 
that, in fiut, thooe who had oomplete power to bind the 
CoB^iany by any oontraet, and were dnly^ anthoriaad 
to manage and aid manage the whole of its affiurs in 
erery respect, indaeed. and were MthoHaed by the Com- 
pany to UMluoe, tlM puuntiff to make such «p«ndit«re 
and incur each Uabllitiee aa aforaeaid, reiweaentlng bom 
time to time, ae tluy were authorised to do, tut the 
oMitract between toe j^aintiff and the Cmnpany wee 
perfect and complete, and, thoogfa contrary to the Caet, 
that the plaintiff's tender had been aeoepted in a 
writing ai^ed by two of the diieotm of the Company, 
and that Doth die pUntlff and die Company wrn 
bound by the bttan of the fith February, 1846, and the 
16th Febraory, 184S. The bill then eet out enbseaMnt 
eoflumanioatiecM between the pUiatiff and the Com- 
pany, shearing that the Company repudiated any fixed 
eontnet. The bill charged theee eommunicatloM to bfc 
** in fiwt, men eubterfugee and attempts on the part of 
the Company to escape a Utility they lud jnrtly i»- 
onrKd." The bill then stated, that on the 27th July, 
1846, a draft contract was sent to the plaintiff, but 
that it was purpoeely ao prepared that the plaintiff eoold 
not possibly assent to tt; that he had recently neer- 
tained, as tne &ct and truth waL that, notwithatandlag 
the fiuta, and cirenmstaiuea, and npreaentatioas oftaa- 
said, the Company bad aot reoogmaad or manifested 
tiieir aooeptanoe ot the tender in wrttiiu;, or by affixias 
their OMpotate seal to any doeoment whataoeTei^ or by 
the rign^ore of two or any of tlie directofs of the Com- 
pany; and that, notwithstanding the re^eeentatioai 
aforesaid, and notwithetanding that divew persMas on 
behalf of the Company were antherieed to iadnoe and 
did indnoe the pJaintiff, by the aud &lse repreeentatioaa 
as to the Uf^l aeo^ttaaee of hie tender, to incur aaoh 
liabilities and expuisee as afereaud, the affixing ot 
the corporate eeal as well as the sgnature of the ^ 
reetoTs was and had always been purpoedlyaiid franto- 
lenay withheld, in order and to tiw end that the Com- 
ply mig^t, at any time, Mthar obtain the boiffit oi 
the Meparatioos so made as aforeeoid by the plaintil^ 
or. if it should suit them better, reputU^ all l^al lia- 
bility in reepeot Uiereof ; and that they had fiaudnlmtly 
declined and did deoline to reo<M;niee the two letten of 
the fith and 16th Febraaiy, 1846, or either of them, by 
affixing their eorooiate eeal thweto, or obtaining the 
signature of two dueetors ; and Uiey had been and were 
tucing etme, by application to the Legialatare, for Ae 
purpose 01 diaeolTing and puttinv an end to the Com- 
pany, and they had gtrm up all notion of making a 
z^way. The bill then chafed that it would appeoE 
that ^ phUnttff was entitled to the rdiaf thereby 
prayed if the Company would set forth the portleulBn 
^rein required of them; that they had money and 
fiinda in haj^ for the especial purpose of paying the 
plaintiff, **a»(fAaee been oonttihfkd and are tnutm of 

aiiehmom^amdAmd»M<»^<*>^^*'^'tf*^P*^^*'^t 
mdtkeplakdifmtfirtmd,imM<aertopa^kimtkeloam 

k$ka9 inaml fa rmpeet tflka w mMkn ^ % mm kJ^ m^ im 



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70 



THE JURIST. 



only to the deduction (Aovonf o/the eoOt and et^maa of 
lAmr <rHf(, and of ihe prtparoitwn and exMitton of tie 
inttrtmmt hy which th^ have admitted the poueanon 
liltf Mii fotMf-Monin on ike tnute aforesaid and 
thrfi^ the taid wnanxg it held in trust for the said Om- 
JMMV vAedvtely: that the taid Company aeeepted and hold 
Ae taidfundt and moniet upon the truttt dedared ly the 
inHrument lastly hereinbefore referred to. and the taid 
mon^ and funds were, in faetf paid and trantfarred to 
the said Company by thote who had made the foresaid 
representations to the plaintiff, and the plaintiff wai in- 
formed of such payment and transfer previoualy to itt 
oeing made, and the taid truttt are declared^ a written 
instrument to the ben^ of which the plaintiff is entitled, 
and he hat abstained from suing the parties who created 
the taid trutt for hit hent0, in consequence of their having 
done 90.** The bill th«a prayed tlut it might be de- 
elaredy that, under the cireunutanees therein mentioned, 
the Company were liable to the pl^tiff, in respect of 
the matters therein mentioned. Tor all damages and 
hiaaa soetuned by him; and that it might be referred 
to the Master, to inquire and state the amount of such 
damages and losses, and that the Company might be 
ordered to pay to the plaintiff what should be found 
to be the amount of the damages and tosses so sustained 
by him ; or that, at least, the Company might be or- 
dered to affix their corporate seal, or procure the signa- 
tures of two directors, to the letters of the 5tb Feoru- 
aiy, 1846, and the IGth February, 1846, or to some 
docnment referring thereto, and accepting the terms 
thereof, so as legally to hind the Company; or otherwise 
that a proper contract, according to the terras Of the said 
letters, might be settled and drawn up, and that the 
Company might be ordered to affix their corporate seal 
or to obtain the signatures of two directors thereto; and 
might be ordered, on the trial of such action or actions 
as the plaintiff might bring against the Company in re- 
spect of the matters aforesaid, or any of them, to admit 
that the sud letters or other document, or the contract, 
as the case might lie, were and was duly and legally exe- 
cuted by them, either under their corporate seal or oy the 
Kgnatures of two directors, on the 1 6th February, 1846, 
<ff on snch other day in the said mtmtb of February 
as to the Court misht seem meet; and that the plaintiff 
mig^t hare the fall benefit of any verdict he might ob- 
tidn In any such action ; and that the Company and 
their agents might be restrained from settii^f up any 
inequitable defence in such action or actions, and from 
partin§| with or assigning their property, money, or 
funds, including therein the said trust-money and rands, 
in order to defeat process or execution on the part or 
behalf of the pliuntiff; and that the plaintiff might be 
falXy indemnified out of the sud trust-money andfnnds. 
To this bill the Company, on the 24th July, 1848, filed 
a demurrer for want of equity, and on the 4th Novem- 
ber, 1848, this demurrer was overruled by Knight 
Bruce, V. C, on the ground that the passagesbefore set 
oat in italics, aUeging the e^stence m a trust, were suf- 
ficimt to snpj^rt the blU. The Company appeded 
from this decision to the Lord Chancellor. 

Bacon* and J. U. Palmer, for the Company, con- 
tended, that this was merelv a bill to recover damages, 
and could not be eastainea; (iTtr^tv. 7^e Ouardiant 
of the Broml^ Union, 2 Phil. 640- 12 Jur. 85) ; that 
the allegations of the existence of a trust were vague 
and uncertain; (Wormald v. De Lisle, 3 Bea. 18); 
that they were general charges, contradictory of the 

* O. M. Giffard, for the pluntiff, stated, m a preli. 
ndnary objection, thtt, lanee the dectsbo of the Vice- 
Chanoallor, the bill bad been emended, tod that to this 
-amended MU tin defendants had not demurred. He re- 
ferred to Wetleaey v. ITeOetby, (4 Mj. & C. 554). The 
Lord CbtBcellor, however, oveiraled the objeetton, observiu, 
^t, if amending the biU conid prevent an ^^eal, thedefimd- 
ant would never be aUe to appeal at tU. 



particular statements of fact costMoed in the bill, an 
therefore, not to be attended t<^ (I1iiUr,Fidd.ihsa 
643), 

J, JituteUnA O. M, Gijkrd, £» the hill, oontendi 
that the bill shewed a contract by ma accented tewh 
that the Company had ftlaelj npEeemted u the plai 
tiff that they nad bonnd thenuuVcs, and had thns i 
duced him to incur enense. 

LoBD Chamceixob, (without calling for a repl;).- 
quite agree with the Vtce-Chancellor, that, accord! 
to the statements in this bill, there is no equity. It 
quite clear that the contract alleged is not one with 
the jurisdiction of this Court. It was a contract at li 
to make a railway, and is one with which this Cot 
will not interfere. Then comes the question, wbetl 
what takes place will make it one which this Co^ 
will cany into effiact. The allegation is of a tender 
the alternative; this alternative is not decided on, h 
it is said that the plaintiff goes to the Company, w 
acknowledge Rennie as their agent. This is to be tak 
as true. The plaintiff says that the Company, tmi 
a mode at law of charging themselves, recognise Reu 
as their agent, and that, on the faith of representatic 
thus made by the Company, the plaintiff incurred e 
pense. I cannot see how tlie case thus made difft 
from Kirh v. The Guardians of the Sromlgf Union. '. 
that case there was a contract in writing, in wliicb, 
any alteration was made, certain forms were to be go 
through ; both parties disregarded those fomu^ ana i 
works proceeded. The Vice-chancellor thought fh 
the plaintiff had been eneonraged to go on, ud tl 
question aroee, whether the acts of the Company di 
not supersede the letter of the contract. I there sail 
" That this Court will not, in general, assume juri 
diction over such a contract is clear. The recent dec 
sion of the Master of the Rolls, in Ambrose v. Dunm 
Union, (9 Bea. 608), is, I believe, the latest aatliorit 
and distinctly proceeds upon that principle. So tl 
question is really reduced to this — Does the statemei 
in the bill as to these extra works and deviations gi^ 
the Court a jurisdiction, which, vrithout such sped 
facts, it would not have had ?'* ( This is the same cs 
as the present). " The Vice-ChanceUor put his dec 
sion upon a well-known rule, that, notwiuirtandiogi 
express stipulation in a contract, the parties may, I 
their conduct, waive it ; and that in this particolsr cas 
the provimon, that the defendants were not to be boai 
by any order for an alteration or deviation unless i 
writing, did not prevent the plaintiff from enforcii 
payment in this court of the amount and value of sue 
alteration and deviation, inasmuch as the defendsn 
bad by their conduct induced him to believe that 1 
would be paid for the same, and would, therefore, ( 
guilty of a fraud in withholding payment. This resa 
would follow from any case in wnich a party could ni 
recover his debt at law for want of nTiting; but thi 
cannot be contended: for the mere inability to enforc 
a legal debt at law does not give the party a remedv i 
equity." (I cannot see how the present case diffei 
from this). ** The case was compared to bills for eff 
cific performance of parol contracts ; but in that ca^ 
the Court has jurisdiction in the original subjcct-maitei 
i. e. the contract ; and the question is, whether the wai 
of writing shall deprive the Court of it. Here the al 
tempt is to make the want of writing the ground c 
jurisdiction ; but, if this principle be sound, why ma; 
not all parol contracts, which the Statute of Frauda rc 
quires should be in writing, be enforced In equiy 
where the phdntiff has acted upon the faith of the con 
tract with the knowledge of the defendant 7 The qti« 
tion between the par^ U, does the provinon m to 
contract protect the defendants aeainstthe perfomunc 
ofthese parol contracts? The assames that it does 
by praying that the defendants may not be penrntle- 
to set np Uie objection." In the view which 1 take o 



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71 



At Aei% Um ia identically the same case with that 
mam befiin ne. Here the dcfendaDts are said to hare 
mda i eti tfat phiatiff to meeed with his pTepantions 
amd to near axpme. Whether the case I haTe le- 
fisicd to was mentioned to the Tke-Chuwdlor or noL 
I do knew, bat, if mentioMd, it niut have asdsted 
in dccifing that no equity vas raised by this bill. 
The Yice^^baaoellor does not mention the case^ but 
Ms^W hoe there is no equity. Then there is an 
m i ff l aa m of a trust ; bat the plaintiff is bound to state 
h»« the tmt aiuee, for the Court is to carry the tmst 
ii not, therefore, to be lefl in the lUrk on Uie 
n^eet. As tbc Court is to act on the tmst, the plain- 
tiff nad shew on what facts the tmst arises, and that 
4lw bets are aach that the Court will act upon them. 
Art the erne doea do4 stop here, for the plaintiff has 
ihewnOatthcncanlienotnut. There is no one but 
the CeiBiay; the mmieT they hare must be the monfigr 
«f the CaB|any; and wlu^ then, are tbey trustees for? 
3W nbintiff was <ni]y connected with the Company 
tnm oang, ss he sta^ induced to beliere that they 
had c^ocd into a binding contiact with him. You 
wttike t^ aD^ations of the bill according to the 
stated, sad here the allegation is nothing mote 
ftmtiH flatiff*s conclusion nom the facts he states. 
TbeTHx-CfanaSor was ctf opinion that there was an 
iBfi a hiTHin eBy anall qnantity of eqnity. I am of 
■maiaa tbtt ust small onantity is wholly evanescent. 
Ik donna- sonst be allowed. 



ROLLS COURT. 
Res. 9. Pbosbkb. — Ifov. 8 md 24. 

JMmtnl^I*roete^m^mSci,Fa. to repeal PaUtU. 
A Writ So, fa. to repeal LetterS'palerU having been 
maei fy tke AntkoH^ the Attomtgf-General at the 
h^aaee cf am Alien — Held^ on Application to the 
Cmrt t» tU^ Froeeedimga thereon^ ( after a similar 
Af f He^ ii m to tie Attomey-GtHeral had failed on 
A ffnes/ tkat tie JProieeulor of the Writ mu oh 
JSm, mi sUr tie Seemrttv for CotU wot huuMcieRt, 
mi mtUerneeiedOraimat^ that the Court had no ju- 
ritHetimteatler^n, but that tie Omlrol of the Pro- 
miinp nMeiemtirefif wili tieAttont^aeneral. 

WNH i , ea ABm megr pnetewU a Writ t/SeLHi, to 
rmHUam^atemL 

TUs «ii aa application, on the common law side of 
4he Cmt, ts Ay proceedings oa a writ of scire facias 
imei hj tie anthority of toe Attorney-General to re- 
peal mtsja letten-patent. The writ was issued at the 
WHtici ef a Mr. Irving Van Wart, who was an Ame- 
ncsa b; birth, and carried on busineas in New York, 
bet was le^vtarily rerident in Englaod. It appeared 
tbit the iliff iliiir, Prosser, had uotained a patent in 
^e^ead br iraprorcments in the machinery ov which 
na tahes were mannfactureil, and one Cutler had also 
*tenaed a patent in England for improvements in 
tW takes tbemaelTes. Tucy subsequently took out, 
M i itii e ia hip^ a patent in Seotlano, oombiotng both 
the t^wli patents. Some differenees subseqoentlv 
•ne between them, and tiie partnership was dissolved. 
The viit «r scire fiKias was, after this event, issned at 
the iaif nre of Van Wart, to repeal Proeeer's English 
prtft An application had been made to the Attorney- 
ftweral to enter a nolle prosequi, or stay proceeding 
«a Oe writ, bat be had declined to do so ; and, m 
fflaw«|ii> IB f of snch refuaal, the defendant, Prosser, 
■ak the prcaent ajpplication. The grounds urged in 
invert of the ap^ieaUon woe: first, that the prose- 
nter was an alioi; secondly, that he bad not sufficient 
*MtRntosapportthe^»pIication; thirdly, that he was 

wtng &w napfoper motives; foorthly, that the se- 
which he had fl^ven for costs vrasinmfficiait. A 

Vfim ihs «nma»d wm nadi AimtmA, whether Uw 



Court had jurisdiction to interfere, and the case of JKtf, 
V. Nieleom (Webster's Fftt. Caa. 672} was dtcd and re- 
lied upon in support of the jurisdiction. 

were counsel for the d«> 

fondant. 

TWmsr, contra.— The prooeeutor is not strictly an 
alien : hu father was naturalised by act of Parliament, 
and the effect of that was to naturalise the son. (Co. 
Litt. 129. a.) But, even if he were an aUen, that 
would not prevent him from becoming a prosecutor in 
a case like this. As an alien be had a right to tnde; 
and, aa a consequence, he had a right to alt actions and 
privileges incident to trade, and necessary to the en- 
joyment of his rights. (Ch<yaple v. Purdmr, 2 Hee. & 
W. 303; Bastana v. Lavmn^ 5 Bing. N. C. 90; Beard 
V. Egerton, 3 C. B. Rep. 97). As to want of interest, 
it is unneceBsarjr that he ahould hare any. But, in fooL 
he has a snffieient interest. Interest in the individtnu 
is not necessary. It is the interest of the public that 
requires a bad patent to be repealed. But a foreigner 
has an interest in setting aside such a patent; he tus a 
right to trade in thb oonntry, and an interest in getting 
rid of any obstacle which interferes with that rigni. Vt 
is immaterial whether the patent affects the immediate 
trade carried on by the party or not. He may at some 
future period wish to carry on that trade. As to the 
allegation that the action was carried on by collusion 
with Cutler, and was not, in fact, the proceeding of the 
prosecutor, but of other parties, to stop certain proceed- 
mgfi instituted b^ the derendant in Scotland in reepect 
to the partnership which be had carried on there^ no 
gronna was shewn for It, and the Court would not wok 
to the motives of parties instituting proceedings to get 
rid of an illeinl monopoly, or prevent an illegal Mt. 
{Colem<m V. The EasUm Gounttee JRaUwtar Coamuyr, 
10 Beav. 1 ; ifotyan v. Seward, Webe. 107). But ber^ 
in foct, the proceedings in question were commenoed 
after the writ wasissuM. 

IV thtter, with Turner^ contended, that an alien had a 
right to prosecute the writ: there was no analogy be- 
tween this case and those cited on the other side, as to 
writs of habeas corpus and quo warranto. In those 
cases the party actually injured must apply, but in a 
sci. fa. a party who might be injured might apply. An 
alien could haveaiutent; and it would 1m stnnge if 
he had not the power to give the Crown the necessary 
information to repeal one. In the old form of the writ, 
it was not necessary to state the prosecotor'a name: 
that was a modem practice. As to the insnfiiciency 
the security for costs, if the prosecutor left the country, 
or the security became insufficient, the Attomey-Grene- 
ral would, on an application to him for that purpose, 
stay proceedings until fresh security was given. The 
Attorney- General bad the sole conduct and control of 
the proceedioss, and the Coart could not interfere. 

IVov, 24. — Lord Lakodalb^ M. R. — In this case a writ 
of scire facias to repeal certain letters-patent, granted to 
Ricliard Prosser, was inued under tlie fiat of tne Attox- 
neV'General, in the usual course. The patentee tip- 
plied to the Attomey-Geoeral first of all to obtainfrom 
nim a direction that all further proceedings in the 
action should be stayed, or that a nolle prosequi should 
be entered. The application to the Attorney-General 
was not successful, and, in consequence thereof, the 
patentee applies to Uiis Court for an order that the 
proceedings m the action may be stayed; and, in sop- 
port of this application, he offieie'the same reasons 
which were addressed to the Attorney -General to Induce 
him either to stay the proceedings or to enter a nolle 
prosequi. The reasons allied are to the effect, first, 
tiiat the prosecutor, as he is called, (being the person at 
wboee instance the Attorney- General authorised the 
writ to be issued, and who u permitted to prosecute the 
action), is an alien; secondly, that he has no spedal 
intoeit In the patent, or in tne repeal of it, but tbtt ha 



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It aethiff in ocdluiion withotlm peTBoiia> with a view (as 
it U sdd) to oppren wd injon the patentee; and, 
thirdly, that the aeonrity for coete, wtidi is given by 
ike pTOBeentora ia improper and ituuffioient. I am of 
opinion that I have no antborit^ to interfere in tills 
matter. The action of atdre feoiaa to repeal lettere- 
Ti«tent is a proceeding of the Crown for the benefit erf 
the public, adopted and auUiorised upon information 
that the lettore-patent are void and of no fevoe or effisot 
in law, for some such reason aa that the conditions on 
nUcii the grant was made are not performed, or that 
dn gnmt was Improperiy made, or uiat, in efieet, Uie 
aoonopoly, supposed to have been granted If^ally, has, 
in fact, been granted illegally, to the prejudioe of the 

KbUc or her Hqeehr's subjeota. It has been said that 
» writ issues as oi ooune, the fiat of the Attomey- 
Omeral for issuine it being granted as of conzse. I 
lUnk that this onght net to be the case, wd I should 
hope there is some error or exaggeration in the notion 
upon that snbject which seems to prer^ ; as it appears 
to me that the Attoniiy-Gen«B], when applied to for 
Ids fiat, withont which the writ cannot issue, has an 
important duty to perform. The Attorney-General, 
who aathorisBS the iasnlng ot the writ, has the ririit 
«Bd iSttB dvty to control the aetim. In the prosecution 
of ity he, or the party whom he permits to act for him, 
must conform to tiie rules of the Court in which the 
noeeeding takes place. He must nroeeed r^larly, 
ibr the puipese of doii^ justice, in tne whole course of 
the proceeding adopted to detennine the right. I ap- 
prehend that all Courts exercise over the Attorney- 
General the same authority which they exercise over 
erery other suitor; and, nirther, that the Attomey- 
- General would not, any more than other suitors, be 
permitted to prosecute any proceeding which was 
merely vexatious, or which had no legu object. But 
the Attomey-Generd, proseonting the action regnlarly, 
■nd being correct in snob respects as these, conracts an 
action or Kire fodas according to his own judgment and 
diamtion, and may, when he thinks fit, stay the pro- 
esedings or enter a nolle prosequi. The control wntdi 
the Attorney-General exercises is subject to the rwpon- 
ribility to which every public servant is liable in the 
dtaehvge of his duty; and I am of opinion, that, in the 
ordinary course of proceeding on a writ of sdro focias to 
lepeal letters-patent, it is within the discretion of the 
Attorney- General to determine upon what or upon 
whose infoimation, or on what terms or security, he 
will permit the action to be prosecuted ; and that the 
exotnse of his discretion in the conduct of the action is 
not subject to the control of the Court in which the 
woeeediiw takes place. And for these reasons, and 
Mcanoe the present application appears to me to be an 
Wpeal feom the discretion of the Attorney-General to 
the Court, which, as I think, possesses no such q>pel- 
laat jurisdictioDu I am of opinion that I have no au- 
tboifty to Interfere on the present occasion. The case 
•f Jt^. V. Nieltm was nted, as shewing the au- 
thority of the Lord Chancellor to stay proceedings 
in an action of scire fadas. In that case it was 
contended at the bar, that the guardianship, as it was 
called, of the prerogative of the Crown, if taken ont of 
the hands of the Attomey-Geneial, must be in the 
hands of the Lord Cbancdior. I do not find that tiie 
Lord Chancellor gave any countenance to that view of 
the ease; and I think that there is no ground for it. 
The snpmor advtsen of the Crown may, and as I doubt 
-ito^ have authority to correct any error committed by 
the Attomey-Genersl in giving or refiisfa^ permtarion 
to issue or prosecute any prertfprtive. writ, or process, 
and the Lord Chanoellor u one of those superior ad- 
Tfsefls ; but when he is acting as a judge in the Court 
of Cluncery, eithor on the common law or the equity 
tfde, I am not aware of any authority which he has 
Id BuHm whiehdipaadoii the- diacntioiiary azoetoe 



of the royal prerogattva. In oaseof ^fpannt 
ship appearii^ to the judge to arise from the eiif< 
ment or a Icml right in the proeaedings befefv 
at hardship ansiiig nom the failnn of security fhr 
from the death of a rdator or otfaerwisi^ I coo 
that the judge may property suggest to the AttonMry- 
neral the propriety of consMering the oas^ and mi 
periy stiqr tlM proceedings to give to the Attonuy 
ral an opportunity of deliberatdy oonridertBg the 
jeot; IratI conceive that he lias noMthority toon 
the decision of tin Attonuy-Genend when ftnned. 
that reflect, I think, the Attoraqr-CSenonl is sniifaet 
another authority ; and it appeals to me very matsriu 
upon this and all other occasion^ not to confound « 
dicial authority, pnmeriy so called, with ministen 
authority, affected as it often is with quasi judicial 4 
thority. In the case of A^. v. JVmImm, theXord CluK 
oellor seems to have intimated that he might have at 
thority in consequence of the circumstances b«i^ aUetv 
nnce the fiat was before the Attomey-Genenl. 
what he ssid (and then was no decision upon thepmtf 
was principally founded on this, that the litigstiou wi 
in foct, ptooeeding without any legal ohieeC : it « 
TexatioQS, md. In ttiat reject, 1 mnehand,ths^ If 
Attcmey-Gai«al thought fit to persevere, it m|ght1 
within the jnrisdletim and authority of the Loo 
Chancellor to stop audi proceedings. It aeeme to n 
remarkable, in the case of Beg. v. Nidmmt Hbalt ti 
Attorney-General, who might have stayed the pn 
eeedings or entered a nolle prosequi by his own ai 
thority at any time, was then present in court, an 
made no ofler to stay whirt was allied, if notadmittec 
to be a vexatious proceeding, but mther seems to ha\ 
asserted the propriety of an interference by the Lot 
Chancellor. However, the only order madein the cai 
of Rt^. V. Nielacn was, that the application should stan 
over till after a decision which was expected in tli 
House of Lords. And,after|ij^Ting the case my best ai 
tentlon, it does not appear to me to be uiy anthorit 
for tiie interferotce of this Court on the present oca 
don. ISdng of opinion that I have no jurladiotiui i 
the ease, itu unnecessary, and perhaps not proper, f< 
me to express any opinion upon the reasons on whic 
the application is grounded ; but, having paid necei 
sarily some attention to the subject, I hope I may 1 
excused for saying, that I see no reason to doubt tl 
propriety of the decision that was arrived at by ti 
Attorney-General on the two principal pointe of ol 
jection. I need not now conrider at all the duty wliic 
the Crown has to protect l^(al patentees against iin|m 
per litigation. There can be no doubt but that it 
the duty of tiie Crown to protect the public frosn illegi 
monopoly. An illegal monopoly is a public grievanot 
and the able aignment addrewed to me in support of th 
appliration has fitiled to persuade me that the Crowi 
having been infinmed of such a grievaiiee, and havin 
the power and duty to remove it If it be sodi, onglit % 
he disabled fVom directing the neceosaiy procee^n^ 1 
ascertdn the truth, because the information was gin 
by an alien or by a person who had no qpedal or cun 
interest in the matter, or was endeavouring to promo 
the interest of some other person, or was actaated I 
some improper motive. And, with respect to the allep 
insufficiency or impropriety of tiie security. I think tJ 
practice of takit^ seeuri^ is highly benefidal mid is 
portent, but it is not founded on any law or rule i 
ooart, but seema to liave been voy pri^erly Introdnei 
by the authority of the Attomw-Gennal aleoe ahao 
within living memory. Tlien u no instance whalwvi 
of the Court having interiered on the subject ; maA 
cannot doubt but that, if it be shewn to the Attoimeg 
General that the security has been or Is insaffides^ 1 
will sUy the proceedings till It is made good. Up« 
the whole, I am of opinien that this sffUBOtloB mn 
be leluwd, and leAuea with coeti* 



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THB JURIST. 



76 



nGB-GBAflCXLLpB OT ENGLAHITS OOUBT. 
HjxroKD ff. SiAcn. — Jon. 20. 
TVOuMM Act^Aeam^atioiu—Ponioiu. 
A. TWnrtii d§mMd kit B§al Eitatet to TVwfMi , (^m 
SWii; dv«v 0^ itt Ni«oe, B. S., to l«n> the 

Prmimw m Btfmir, wwmKr, ^e., oni f'm on £wn< 
iMA Atf w< jMrp«, M jnf •<4iMimr (0 £. 8. for 
har L^) 1o aetmmuhtt tfci .Sto;p/iu, (Maiawftm b(e 
Jn ^tAar Reai EHatot,toh«tetthdtothe*ame 
U$mt arttmwat the Accwmuhtioiu in the I\Knd»; upon 
AtJ>mA <fE,S^ tie Ettatet f oni^a/ and aecymu- 
imtdj to^oto tikt Firtt amd other Sona of £. 8. in 
IWJfofa, miti B^mmdera over. Hie Pertonal Es- 
he fam to otker 7Vw<m, with liie Direetiane to 
■ a 1 J ii i i , «■ the Woj^ of eoMomtd IntereeL dtuinff 
^L^«fB.&s tiat togoioher Children, Share and 
Bmt^t, wiA Ctifit o«er m default of Children. 
JUdtUrngkef tie T^satator, J.S.wa» tm Hetr-at- 
Imm, to ht dtei akartfy i^^mlttlatt m to kit Stal 
MtmefiemmmgtaidJB,S,\itHrirtt»^Law, Tmenr- 
^4Ht Temra \ mm m g mom ttjrirmt^Hiild, /hM. tkat 
X&VM m M t i toi$ let imo Pmeuiom ^ lU de- 
mtiStal FetatM. 

tie Heireat-at'Laie, and not the Executor 
A » iiitif Tmi, far her LjfeAo the Income arieiiiff 
fiem Hr Jii— fiifimii «f the Raitt and PrdUt of 
tikHeatSk^m. 

th^kfike Ute of the Word* " Portion," 
"Pwtiso or Share,'* w tke Advancement Clause, «i 
gffeaMB to tke Pototr fftven to the TViufsw to adwrnee 
^lie OUUinsB who thouldhate a vested Intereet in 
this Case uMtnUbm^kt within the 
tktamd Section of ike Thdkuem Act. 
£Staia% off Cutcrboxr, by hb will, dated 
■bar, 182^ ^Te and devMsd all bis manors 
i tberan partiealarly mentioned, and all other 
MMMR^ loaasnsgBs, lands, tancroentSr^ faereditamsntsi 
M&csWca^ mrt ibraeini^er otherwise by htm well 
■iilalasTlj ill III! and dsTised, unto Richard HsI- 
IWsai Jsha Farley, and their heirs, upon trust that 
m Aa snrriTor of them, or his neirs, ahonld, 
^■■t the tana of the natmal life of his, the said tes- 
Ws>\ateaeyK,Staiiu^ receiTe and take the rents, issues, 
'taef tbe said eatates and premises, and should 
,m liw fint place, keep the same in good and 




itaUe sqpMT, ana idso keep the buildings thereon 
sad sransaAly inaated from loss or dama^ by 
«^ ik Ihs JMUEt place, in an erent which did not 
, pay nto his amd niece, Elizabeth Stain^ one 
ardearyeaiiy som of 2/i3fiU, for horown use 
A, far the term of her natnnl life, upon trust 
ftab Aa trwtesa or tnutee for the time beinr 
mt^i^imiat ^ term of the natural life of his sud 
rfsn^ Aabsth St^n^ at ttietr or his discreUon, lay 
Mjm avast th« reridue of the sud rents, issues, and 
' aDy pait or parts thereof, after making the 
Tuats and deductions as aforssud, in the 
ef fre^old maDoia^ messuages, landi^ teae< 
, «r Iwsaditaments, ftae fnmi incumbrances, (ex- 
tern aad qntt reals), to be utoate in the county 
r to hassled to nich and the ssme ends, intent^ 
flMpB^aasa, as were in and by the said testator's 
iritt fcnad, liniHed,aiid declared of aad conoeming his 
ttmeemi MwinL or as near tbsrAo as the deaths 
paatin and otaer conliQgaiHdeowottld admit of. And 
- tnMt» that tl^ and he should, at their or 

1, as 4o sDoh part or pvts of the sud net 

I aa aheald not be laid out and invested in such 
«r pndiaseB aa afoiesud, and also in the 
t, and antil eadi purchase or purehaaes should 
aa afawssid, as to the whoJa of the said net 
I «f tha asad rnta, issves, uid profits, lay ont and 
h*MttkB same, in th«r or his own names or name, in 
ttsffHAm of stacks fa sona or mm of the public 




funds, or mwn other GoTenunant or real seonritiei^ at 
interest, of^ ud in England, and dwold alter, Tary, aad 
tran^rasB the same stocky funds, and securities firom 
Ume to tinie, at their or his discretion, uid should i** 
ceire the dividends, interest, and annnu proceeds of Uia 
said stocks, funds, and securities, and lay out and in^ 
vest the same, in their or his own name oroame^ in ar 
upon o&sr stocks^ fiindis or securities of a similar de- 
scription, so thi^ the same, and all the resulting inoeaM 
and prodaoe thereof might accumulate in the way ot 
compound Interest; and from and immediatelr ut«r 
the deceass of hu sud niece, then upon trust toat his 
ssid trustees or trustee for the time bailor should stand 
and be possessed and interested of and in all and erery 
the sua stocks, Amds, and securities so directed to be 
purchased and aoeumulated, upon and for the trusts, in- 
tent^ and purposes therein^ler expressed and declared 
of snd conoeming the residuary penonal estate of whioli 
the same diould be and be deemed part. And from aad 
after the decease of his said niece, the said testator di* 
rected that his said trusteesor trustee for the time being 
should stand asiaed of all and mwolar tlia sidd eatatea 
and piendsea thereinbefore devissd as aSwesald. Thsa 
oame linutaUona to thenae of the first and other sma of 
the boihr of Elizabeth Staine in tail male, aud^ford^ 
fiftult of^ such issue, to the daughters of the nrst and 
other sons of Elizabeth Stains, as tenants in oommoa 
in tul general — the daughters of an elder son to be pre- 
ferred ; in default of such issue, to Edwin Stains for 
life, renudnder to his first and other sons in tul male, 
&c., with ultimate remainder to the use of the testaior*B 
own right heirs for ever. And the testator, after 
making divers pecuniary and si>ecific bequests, nre 
and bequeathed all and eveiy his stocks, fuDd& See., 
and also the stocks, funds, and securities thereinbeftwa 
directed to be purchased and accumulated, and all the 
residue of Us personal estate, (subject to the paymoit 
of his debts and l^scies), unto John Baokton and 
Thomas Bourne, their executors, administrators, and 
assigns, upon trust that they, the said John Baokton 
and Thomas Bourne, or the surrivor of them, his ex^ 
cutors or administrators, should, wiHx all conTeniei^ 
speed after bis decease, make sale and absolutely dispose 
of all such part or parts thereof as should not consist 
of stocks, funds, monies, mort^iagee, and securities for 
money, and should collect, get in, and receive all such 
part and parts thereof as would consist of monies or 
securities lormoney, and riiould, attheiror hisdisoretira, 
lay out and invest uie same monies to arise and be pro- 
duced by ewA sale or sales, and to be collected, got in, and 
recnved as aforeasid, or any part w parts thereof, in their 
or his own names or name, in the pnrehase of fredmld 
raaaoTB, messuages, lands, tenements, or hereditament^ 
free from inoumbranoes, (except Am form aad ^vtt 
rents), to be sitnato, lyina, and being ia the county of 
Kent, and which the said^testotor directed to be forth- 
with settled, conveyed, and assured to sueh and the 
same wes, and upon such and the same trusts, as weie 
thereinafter by him declared of and concenung such 
part or parts of bis said net monies as should not be by 
nis said trustees or trustee, their or his executors or ad- 
ministrators, laid out and invested in such purchase or 
purohaaes as aforesdd, or as near thereto as the deaths 
of parties and otfier contingendes would admit of; and 
npon fiirttur trust, that they or he dmuld, at tfa^ nr 
hu diswetion, as to sooh part or parts of the sud net 
rendne aa should not be laid ont and invested in such 
pnrehase or pnrehasss asaforesud, and slso in the mean* 
time, and until such purchase or pnrehasss should ht 
made as i^resud, as to the wh<de of the sidd net 
motdes, lay out and invest the same in their or his 
own names or name, in Ihe parchase of stock, in some 
or one of the publio funds, or upon other Goverft* 
meat or real ascurities, at intarest, of and in Engluid, 
and shoold altsi^ vasy, and tna^sae the same stook% 



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74 



THE JURIST. 



fonda, and Becarities, from time to time, at their or his 
discretion, for or in other stocks, funds, or Becnrities, 
of the like nature, and ahoald receive the dividends, 
interest, and annual proceeds of tlie said stocks, funds, 
and securltiea, and again lay out and invest the same 
in manner aforesaid, bo that the same and all the re- 
sulting income and produce thereof might accumulate, 
in the way of compound interest, for and dnrli^i the 
term of the natural life of his said niece; and from and 
immediately after her decease, then upon trust that his 
said trustees or trustee for the time being should assign, 
or transfer, or make over all and every the said stocks, 
funds, securities, and accumulations, nuto the child, if 
only one; and if more than one, between and amongst 
all and every the children, but exclusive of an elder or 
only son (such only son not beinf^ an only child^ of his 
said niece, equally to be divided between them, if more 
than one, share and share alike, as tenants in common, 
and to be vested in sons at twenty-one, and in daugh- 
ters at twenty-one or marriage. The will then con- 
tained furth» limitations of Uie personal estate, upon 
defitult of issue of Elizabeth Stains, to ea&d Edwin 
Stains and his ehildren, &c., with an ultimate limita- 
tion for the person or persons who would have been 
entitled under the Statute of DistribuUons, in case the 
testator liad died intestate. And the testator, by his 
will, also provided, that it should be lawful for the said 
trustees or trustee for the time being, at any time after 
the decease of his said niece, to apply all or any part of 
the dividends, interest, and income arising from the 
portion of each, any, or either of the said children and 
issue, being minors, of and in the said stocks, funds, 
and securities, during tlie minority of such children 
and issue, for or towards their maintenance, education, 
clothing, or advancement, in such manner as his stud 
trustees or trustee for the time being should think iit; 
and also to advance and pa^ to and for each, any, or 
either of such children and issue, notwithstanding his, 
her, or their minority, any pert not exceeding one-half 
of the then vested or expectant ihare of any such chil- 
dren or issue of and in tne said stocks, funds, and secu- 
rities, either for placing out any such children or issue, 
being a male, to any profession, bunness, or employ- 
ment, or otherwise for the advancement or preferment 
in the world, or in marrying any such children being 
either male or female; and that all sums which should 
be advanced to or for each of such children or issue re- 
spectively as aforeaud should be taken and considered 
as a part of his or her nld portiom or Aan reroeetlTely, 
and should be deducted and allowed out of the same, 
notwithstanding his or her death respectively before 
his or her portion should be absolutely vested in him or 
her. He appointed John Buckton and Thomas Bourne 
executors of his will. The suit was instituted by the 
trustees of the real estate, to have the trusts properly 
carried out. By a decree made therein in the year 1842, 
a reference was directed to the Master to make certain 
inquiries; the Master, by his separate report, found, 
that the testator died 24th September, 3627, leaving his 
brother, James Stains, since deceased, his only brother 
and helivat-law, and heir according to the custom of 

Svelkind, (of which tenure the devised estetea were); 
at James Stidns died in the year 1828 intestate as to 
the real estates, which vested in him as h^r>a(-law of 
the testator, leaving said Elizabeth Stains, his only 
child and heiress-at-law, and according to the custom, 
him surviving ; and that she was then the representa- 
tive in respect of the hereditaments, which M-ere ex- 
pressed to oe devised by the will of the testator. It 
appeared, that, after the testator's death, the trustees 
or the real estate entered into possession or receipt of 
the rents and profits, and out of the accumulations pur- 
chased certain lands, which were conveyed to them, 
according to the directions of the wUl; and that they 
had since aeenmulated the nnta and pnfita of the real 



estate; and that, on the 24th S^temlwr, 1848, there 
were of such accumulations, 3843^ 7t. 2d., SI. per Cent. 
Bank Annuities, and 1620/. 0«., Reduced Bank Annui- 
ties, which the trustees had brought into court. Elisa- 
beth Stfuns now presented her petition in the cause, 
stating to the above efieet, and that the period of 
twenty-one years, computed from the day of the death 
of the testator, ended on the 24th September, 18M; 
and she submitted, that the trust for aceumnlatitm 
contained in the testator's will was good and effectoal 
for such period of twentv-one years, and no longo*; 
and that from such period she, as such heiress, became 
entitied to the rents and profits of the said devised 
and purchased estates, and to be let into posaeeeion., 
or receipt of the rents and profits thereof as from the 
24th September, 1848, and also to receive the dividends 
and interest arising from the past accumulations of the 
surplus rents and profits subsequentiv to 24th Septem-. 
ber, 1848; and prayed that she might be let Into tha 
possesuon or receipt of tlie rents and profits of the add 
real estates accoi^ingly ; and that the sum of 23^ 12f. 
cash, which had arisen fVora the dividend upon the aud 
16201. 9s* BeduceS Bank Annuities, which fell due on 
the 10th October, 1848, might be ordered to be paid to - 
her; and that all the future interest and dividenda 
which should arise from the sud 3843/. 7*. 2rf., 31. per 
Cent. Bank Annuities, and 1620/. fit. Reduced Bank. 
Annuities, might be ordered to be from time to tim« 
paid to her during her life. 

Jama Parier and Z/tyrf, for the petitioner.— The pe- 
titioner Is entitled for her life to the rents, iasuM, profits^ 
and produce of the real estate from the expiration of the 
twenty-one years after the death of the testator. The 
Ist section of the Thellusson Act, (39 & 40 Geo.3» 
c. 98), directs, that, " in every case where any accnmn- 
lation shall be directed otherwise than as aforeaud, such 
directions shall be null and void, and the tents, iaauei^ 
profits, and produce of such property so directed to be 
accumulated shall, so long as the same shall be direeted 
to be accumulated contrary to the provisions of this 
act, go to, and he received by, such person or persona 
at uxmid have been entitletl thereto if such accumulation 
had not been directed." We further contend, that the- 
petitioner is also entitied to the fruits of the accumula- 
tions from the real estates, as being part of the produce 
of the real estates; and we submit, that there is to be 
no apportionment in respect of the last half-year's rent, 
the trustees having necessarily received alrei^y twentjr- 
one-yeara* rent, the testator having died S4th Septem- 
ber, 1827. 

Bethdl end C^ootZnw, for Edwin Stain^ the first 
tenant for life under the will. 

JTef^on, for one of the tmstees of the personal estate. 
— There is one question which the trustees consider 
necessary to be decided on this will, namely, whetlier 
this direction for accumulation is not wilhm the ex- 
ception In the Snd section of the Thellusson Act in 
favour of accumulations for portions. The 2nd section 
says, that nothing in the act shall extend " to any pro- 
vision for raising portions for any child or children of 
any grantor, settlor, or devisor, or any child or child- 
ren of any person taking anv interest under sndt eon- 
vevance, settlement, or devise." [He then read the 
different parts of (he vill in which the word portion*^ 
or ** portions'* occuncd, and contended, that thia cue 
was within the above exception.^ 

Vice- Chahcbuor.— The question seems to be, whe- 
ther a mere gift as a general l^acy is within the 2nd 
section of the act. I do not think these are poithMB 
within the meaning of the exception ; but the testator 
has put his own meaning on the word, and he expUina 
it to mean *' part or sbate." 

Parker, on this point, mentioned the case of 8kmm v. 
iZAodef, (1 Russ. ISfi). 

Oimmm, fox tha oceeotor James Stains.— I anh* 



TH£ JtTRIST. 



75 



mM, tbat ih0 ftnib of the aeeamnUtioiu belong to the 
■ iiMPtl representatire of James Stains. Duniw the 
me of Ettzafaetii Stains the aecnmulationa T«st«d in the 
hor ctf the testator, eitlier as personal estate, or as real 
otats not descmdible, bot merdy an estate pur autre 
TicL (JM/ r. 23(aunr, 10 Bear. 31fi). [Fww-CAaii- 
mBtr, — That was the ease of a chattel interest only.3 
Hoc it 'm an estate nor antre rie, and, there beiiu no 
ifcdiii ocrofHsl, it fails within the 6th NcUon of 1 Viet, 
c to the executor. 

Tn-CkiSRSULOK. — This is a portitoi of the inherit- 
aaet ■afiiy oa a d cf, and it soes to the hetivat-law— that 
■lyfiaa heir to b^. — Ordered a$ prajfed. 



TICE-CHASCELLOR KNIGHT BRUCE'S COURT. 

EgfmrUSftxxMAn, nt r» The AaucuLTnusr Cattlr 
IiBvuxcK Compart. — Jm. 12.^^ 
Mmt-deck Ompanict TVindinff- up Act, 
A Comf^y /orsMij ^for Jnemrance againU Zow Igf the 
itei er biamae of Oattie it not a Comptmjf leitkin 
At Umaimg^au Aa 11 4 12 Viet, e. 45. 
H^vas apctatku presented by George Spaekman 
aad J«srfhS9ackinan, two of the oontributones of the 
C s fmy . ftMiod under the act, pnjnng tbat the 
CMfaaj be abaolntcly dimolvcd and wound up. 
ThtaeMevM projected in 1845, principally for the 
■NHMr of hones, cows, and other animals and cattle 
ifUMtdbeiMer death. T^iedecdofaettlementconti^ied 
tdaam aapowcrinK the directors, with the consentof 
eatam neebngs, doly convened, to grant aaearanceeon 
hnaahfe^and to grant life annuities and endowments, 
and l»|nat iBsnrancca on ships and all descriptions of 
naeb a any dock or harboar with thrir cargoes. The 
l>aaiy objects of the Company were declued to I}e, 
ts make or effect insaranccs Bsaiost loss by mortality 
m di )att^ and descriptiotts of animals, whether biped 
« fadtaped, bciDg property ot live stock belonging to 
JMBB^kaepcn of exhibitions oS animals, and others, 
vUMg^ then, orat at any time thereafter, hek^t 
tyaqrpcrsoai or persons for the purpose of pleaaore or 
{■ait, vbrtbo- such mortality should be occaaioned by 
«Hth,withoat apparent cause, during the period of in- 
aKSBoe; or by tlw slaoghtcr of any animal or antmola 
^ rssst^BiBLi of taint or infection, or suspected taint 
«iafaetiaa,bj or from any disease which shall be, or 
Weoendeiedte be, conta^ooa, or epidemic, or ende- 
me, et the aainal or animals should die ; or, with the 
eaBMBt of the Company, or its officers or aervants duly 
mhaiiad in that behalf, be alanghtcred in consequence 
af iBbs^ fiMBTy or accident, or other jnst means or 

AnMhi and OoBiiu, for the petitioBi—This Com- 
fuy wdBrtock to naofe hnman lifo as well as cattle, 
ikvi with their cargoes in harbour, &c. This was a 
taae vithiB the meaning of the act. To purchase and 
aA aaautaes— Is not that a trade? The word "com- 
—t * has a diffrrent and more extensiTe meaning than 
Ae woed ** tsadc." The lex mercatoria may apply to 
kstk. The ordmarf province of commerce ia exchange — 
Iba rwhang e of different commodities. [Knight Bruce, 
T.C^— The word ** commerce" has a very simple and 
hagt sad aanal second meaning. Now, the question is, 
vkther" trade" has that second meaning.] "Trade" 
iamed ia a scaae m<n« restrictive than ** commerce." 
Ihs bariness of thia Company cones fuUy within the 
dHEiiptasn of a eommcniu and trading company ; and, 
ft ii i i fu s ii, it was indnded m the 7 & 8 Vict, c 110, 
mi, asaaaoMntly, is within the provirions of the last 
ait, (11 ft IS VieL e. 45). 

MaariZ aad K Prior, for the rsmnidait% were 
laleaBedoa. 

Kamr Baoo^ V. C— I continns of the opinion 
vhiAlcxpiaaed in tlie case of ITu HtrmBujfPior 

^ ^ < ' / ' ....... -s 



Company, (llJnr. 1064), tbat this statnte ought not 
to be put in force, except in cases which are cleariy 
within its scope and free from difficulty. I am « 
opinion that this Agriculturist CatUe Insunmoe Com- 
pany does not come within that description, and I mast, 
therefor^ dismiss the petition, end with costs. 

Ex parte Grarouie, tn re Tbk Nokth or Emound 

JoiKT>srocK BAincrKO CoiiPAifT.-Vtftt. 13. 
Notice under the 78/A Section iff Me Joint-ttoet OaM- 

paniet Wiuding^ Ad, 1848. 
A Shareholder in a Joini-ttoet Battting Ompanf died, 
and hit Brother thereupon claimed the Sharet, out did 
not pr&ee aa» Will or tale out AdminittraHon. He 
received the ZHvidendt, timing the Receiptt at Be- 
pretenttUiveof* ^c. (^e deceased Shareholder). Upon 
the Winding-up of the Companji, under the II ^ 12 
Viet. e. 42, the Oficial Manager, in hit Notice to the 
Brother, underthe lOth Section, described his Character, 
at Holder of the Shares, to be ** Representative of** 
^-e., and the Court held the Notice to be tntuffident. 
Thia was a motion to reverse a deciuon of Master 
Farrer, the Master charged witli the winding-up the 
affiura of the North of l!.ngland Joint-stock Banking 
Company, made on the 8th December, 184^ by which 
the name of Thomaa Grsholme waa included in the Int 
of contributoriea of theCoinpany as a contributory with- 
out qualification, in reepect of twelve shares. The 
facta were, that William tiraholme, deceased, the bro- 
ther of Thomaa Graholme, executed the original deed 
of settlement, dated the 14th November, 1832, in re- 
spect of twelve shares, and up to the time of his death, 
in 1837, he continued a sliareholder of the Company in 
respect of these shares. Soon afur hia death, TboiDaa 
Graliolme applied to be allowed to receive the dividends 
upon tlie aliares, but payment was declined, unless pro- 
bate or administration to William Graholme were pro> 
ducsd; bat, npon it appearing that theae twelve riiares 
constituted the only property left by William Gra- 
holme, the directors 01 the bank consented to the ap- 
plication of Thomas Graholme for payment of the 
dividends to him, and he thereupon received tiie divi- 
dends then due, and continued from time to time to re- 
ceive the dividends on the shares, aiviiing in each case the 
receipt fur the same, Thomaa Graholme, representative 
of William Graholme, deceased." Underthe petition un- 
der the Joint-stock Companies Winding-up Act, 1848, 
the matter was sent to Master Farrer, and the official 
manager appointed gave a notice, pursuant to aecL 78, 
to Thomaa Graholme, describing him, in the column 
for such purpose, as " representative of William Gra- 
holme, deceased and, this not heUig considered suffi- 
cient in point of form, the present appVtcation was made. 

Baeon and Headum, for the Company, submitted 
that the description was sufficient. 

His HoKOB said he did not think the notice suffi- 
cient, and referred it back to tlie Master to review his 
decision and certificate touching Thomas Graholme. 

£r parU AuoTBOim, im re Nobth op Ekound Jonrt- 
•xocK B&HKixa CoMPAHT.— Jm. 16. / 

Joint-Uodt OtmpoHiet WitOhtg-up Act, 1848— Cbnlrj- 
butoty — BtoButor. 

A TeltatorwatpoeteuediiflSiararmaJoint-tlodtSani' 
htg Companp. Hit EMcutor took no &ept to kaoe the 
sharet transferred into hit Name, hut told tome and 
received Dimdendt on othert, tigningthe Dividend Re- 
eeiptt and mating the 7\vntftr* of the sold Sharet at 
Executor of hit Teaator.—Held, that hit Name ought 
not to be meladed in the Litt of Contributoriet, under 
the 11 ^ 12 Vict. c.4&,ata CotUributory without 
Qualijieation. 

Bumll and Piggolt appeared in support of a motion 



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19 



THE JtJBIST, 



in tills can on behalf of William AnDstronB, the exe- 
cutor of William Hedle^, deceased, that the decision of 
the Master. (Mr. Farrer)^ that his name should be in- 
duded in tat list of coatnbutotiea of the Company as a 
contribntoTV without qualificatton, in respect of ax 
shares, might be rerersM, and that his name might be 
struck out of such list. They stated, that James Hed- 
ley, who held eleven shares in the Company, died on 
the 1st May, 1844, baring, by his will, appointed 
William Armstrong his executor ; tliat WiJlia^a Arm- 
stroiw proved the will, and from time to time received 
the olndend^ dgning the receipto for them thus: — 
<* Execntor of the late J. Hedler, William Armstrong." 
In December, 1846, he wrfd five of tiie shares, and 
transferred them to the purchaser as executor, but the 
temping six shares were never transferred into the 
name of William ArmBtrot^, as required by the deed 
of settlement of the Company. They contended, that 
the execntor, being only such, conld not, with any pro- 
priety, be included in the list; and, therefore, that the 
Master should be directed to review his decision. 

BaecMj IJo^y and Headlamt in opporition to the mo- 
tion, insisted, that all the acts done oy Mr. Armstrong 
in the receipt of dividends and in the sale of some of 
tbe shares bad been such as an owner only could pro- 
perly do; and, therefore, that the Mastereonld reaaon- 
ablj come to no otiier oonclnsion than that he had so 
acted as to make it proper to include, as he bad done, his 
name in the list of contributories without qualification. 

Kmioht Brvcb, V. C. — I consider that the queation 
whether Mr. Armstrong is personally and individually 
liable to the creditors of the partnersbip is not before 
and that this question is not in any way affBcted 
by what the Master has done, or by what I shall do. 
Mr. Armstroi^f may be liable to the creditors indivi- 
dually or as executor: on that point I say nothing. 
The queetion before me is, what is Mr. Armstrongs 
poslUon as between himself and the Company and its 
memberat. With great dsfisrence to the Master^ I think 
that the evidence u not snfficient to shew that he has 
beoome liable otherwise than aa executor. It seems to 
have been assumed, that it is for the interest of the 
Company and its members, that Mr. Armstrong should 
be held personably liable. It may have been otherwise. 
In nanv cases it would be more advantageous that it 
should be otherwise. How it is in thu case I do not 
know, and I cannot eav. The formalities required by 
the deed of settlement nave not been observed, but they 
may have been waived by the parties. Looking to the 
whole course of proceedings, and looking to the manner 
in which the receipts for the dividends have been signed, 
I oumot aay that this gentieman Isacmtribntory with- 
in ttie meaning of tiie act, whatever his Usbility to cre- 
ditors may be. The Master must review his dedrion*. 

Bx part* Akgas, i» rt Nratra of Emolaioi Joivt-stock 

BufKuia ConpAiTT.— t/im. 16. 
JMtf-ifeei Compaaiu Winding-up Aet^ 1848— Cbnfn- 

Mfforisv— .flms Cbwrf. 
Sham ^ a Joint-ttoei Baaiing Qmata^y wSicA (^mi- 

e.4f^ were bought wHk AfonWy Part of the separate 
£tlate ^ a married Latfy, The Sharee weretrant/er- 
red into her Name, and the Dividemde toere regufarljf 
reoeived Ig her Husband in her Name, and ae her 
Agent:— Beid, that the Name of the Uiuband onght 
met to be induded m the Liti of CSM(r<&«(or<er, nnder 
tieStat. 1M12 Ftet.c.46. 

Mmeeeil and Terrell appeared in support of a motion 
in this case, on behalf oi John Lindsay Angas, that the 

* Jen. 30. — On the bearing of this case on sppflel, the Lord 
Chanodlor was Infonned an action bad been broo^t 
igainst Mr. AnnHtnmg, and he directed As petfttou to stand 
Ofermtil tbe astlon had been trtod. 



decision of the Martar, (Mr. Fsner), that his xittH 
should be included in the list of oonbibntories of 
Company, might he nveraed, and that his name oufll 
be struck out of each list. They stated that fon 
shares, standing in Uie name of Mary the wife of Joll 
Lindsay Angas, were purchased with money foxmia 
part or her separate estate ; that the dividend were t* 
ceived by him, and the receipts were mgned by luJ 
thus : — " For Marv Angas, John L. Angas ana aona 
of the receipts haa also the words *' per procnmtion. 
That, befinv March, 1847, the name of Atuy AiMv Iw 
been retamed to tm Stunpnifltoe aa a shareholte', Im 
in April her name was not so returned, bat thenune o 
John Lindsay Angas was substituted. That, on the 8til 
March, 1847, the oank stopped payment, and that al 
communications made by the direeiors of the Comp&ni 
in respect of these forty shares were addressed to tti 
wife, and not to the husband. Under these dzcnxn 
stances, they contended that the Master was wrtmg ii 
having included the name of the husband, and that liL 
decision ought to be reversed. 

Baean, LMffdj and Headiam, in anpport of the deci- 
sion of the Master, stated that Uie judgment which had 
been arrived at was after oonndermon uid mature de- 
liberation, and was deliversB in writing on the 22ikd ol 
December, 1848, aa follows:— I ddayad my o^niosi 
on this ease until It should bea8e«rtained, if iteoold lie, 
whether the purchase of the bank shares with money the 
separate estate of the wife was a fact made known to 
the directoia or nnblie at the time of the transfer. It 
is not proved ; therefore, the case must stand upon tbe 
mere admission that tbe money was her separate estate. 
It is not necessary to go back to the authority of Coke 
upon Littleton for the doctrine, that the win hi oape- 
ble of purchasing; that the husband may aaaent to, or 
dissent from, her purchase ; and that, if he assents to it, 
the property parohased is, by law, vested in him. It ia 
clear that, m this eaae, the husband assented to the pnz^ 
chase of the wife : the aharss vested in him ; aaa all 
legal consequences of ownership flow from his title ao 
acquired. Again, if the wife eontraeta with the aaoe- 
tion of the husband, expressed or implied, lie 1>ee(HiMB 
liable. Mr. Angas^9 assent to Mrs. Angas's contract 
justifies Uieconclnrion that he took it upon hinosei^ 
and, therefore, renders him liable to it. Tna fact that 
the purchase-money was the wife's separate estate would 
not, 1 think, Iw ground for a Court of ec^uity to inter- 
fere with the creditor'a legal rights against the ha^ 
band. There is a dass of eases in which the hodband 
was held not to be liable to the wife's contract ; bat in 
these It was proved that the credit was given to the wifo 
alone, the huriund being ignorant of hweontract. The 
form of receipt riven by the husband fixes him. If there 
were not any oUier evidenee, with tim InmwMge 
and the assent to, the wifigPs puiohaaeand contrael. He 
cannot, as here attempted, constitute himself tfae want 
of his wife, to the excTumon of his own liability, u the 
hosband is net liable to the creditors intitilaeass, noone 
is liable. I un of eplnion that Mr. Angas is a contii- 
bntory within the meaning of the act uider whidi the 
reference is made to me; consequently, I include l^m 
in the list of contributories." Sndt was the opinion of 
the Master, and that opinion ought to be supported. It 
was dso to 1m observed, that when the Bank of Bag- 
land assented to the Joint-stock Banking Act, 7 Geo. 4, 
c, 46, it was— and that feet geared on the Cue of the 
act itsslf-on the exmms stipnlBtionaad eonditlMi that 
every member should be lialue faihisownpemonfbr As 
debu of the coDoam. Withaviewtotht^thedasdof 
settlement of tfae Cenqtany waa ftamod ; aiid aa no no- 
tice of these sliares having been bouriit with the aspe- 
rate estate of Mrs. Angas waa ever ^ven to the direct- 
ors, the assent to the transfer of them could be givm 
only with a view to the liability of the hndiand, it 
being dear that thaj were bou^t by a married womw. 



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TBB. iH RISE'S 



77 



ttfi^ dwfixccten poawai ao pown- to daw 
inte a vartaiMap eoBtnek «idt • ur- 
nwwlidikiw 

> atti ou^ DO* to b» MuM. 
n fihnxa^ T.C^I (HMrTiij liinflw fliilltiii 
: M likiailf to ba li^t aa I am, bat I an 
Ltoact von my own <^i&oa. la tha naant 
jdKlasy had^bnibaBd firiag iHmq im por^ 
Acibaree. Tbe Conpaay kMw tkst &et, and 
WW ktr pp chaa a irithont any partid nation on hn 
WWa dhrMaudawcte neeired umt mre re- 
t aat is bia on i%fat, not in hvt righL 

^8 a giDt — hj pioeiiratiaD of tba wife. I 

ittiakit if to b« umred from tinaarldanoa that 
I r—iimii aiai imiwiImi it biiii lialila, iii IhnI hii hail 
~ -to^wth tiw iliiim, iBiT.lhaialbui, haiaiiat 
naQuHioa nat m to bia liafaUiky, ar ab- 
» ^SMbiStj, to emmon, but • vacation aa to the 
t%b< af tfca ■haiahaliiaia Sntor m, I thiaik hia name 
'iMtbaindMadinthaliatofeootzibntoriea. The 




Bit 




in n TrxKosth at Emoluid 
Ba'migw C<mujn.^-^mB, 16. 

IFhiWiy ip ^ 1848-aMifn- 

Oifa' a HytiwM >W ipS Z i y i9> a Jotat-ttoei Baai- 
aaj, idUc4 mu ^wrf wular 7 
Aa-i^ciS, Lie Comrt kdd,UuU tke Matter had pro- 
^r^mrl^ii m lAt LiM of ComtHhaona tJke firmer 
Fill ill Will t» CA« Compatur, vko had net ceased to be 
mmikMrt /or cAe Period Tkre§ Yean. 
MmmOami BmUM appeared in aapoori of a motion in 
IliiiMi wliiihairiif Ifiiliiiil £Uwthoni, that tbe deci- 
daa af tb> Maater, (Hr. Faim), that his name abould 
temdadad in tba list of eonbibatoriee of the Company 
"■■ iMliniiiliiij in Tc^ieet of eighteen aharea^ and 
mmk faUa to tka dabta, liabilities and hwaca, if any, 
^tofta lai Jaauiy, 1847, inelnaiTek'* nu^t be re- 
tmd; mi that tiw aaae of the aud Bobert Haw- 
ttaa ai^ ba atrndc oat of the Uat of contributoriea. 
TWy itatcd, ttMt Robert Hawthorn, (on whose behalf 
ft^r ^ y u wcaath-ttpon-Tyne, engin»-builder, 

^^«» to tte Sad Jasoaty, 18tf , the holder of eighteen 
Aam m the baak ; and that William Hawthorn, of 
tta mm» plae^ engine- builder, was, up to the same 
4^ th* hebkr ei twelre abarea in the aame concern. 
iVspaa^ iif lia—fii, dated 2nd December, 1846, were 
mim hj Bofavt Hawthorn in fitvoar of Jtdm Cowena, 
ai» WM fnriooriy a ahartboldw of the Company ; 
lad, ea tha iml Janaan, 1847, the transfer of eighteen 
Ana am mode by Robert Hawthorn to Cowena. 
lUr Ome dicamataneea, one Bobaon, a contribatoiy 
i^fii^ rtaiiaiid ba^ tha Master to include Robert 
ia the liat of oimtribatories; and, on the 
tba Maater detonnined ao to inclnde 
hia name then aooordii^. They 

.that, aa tUs waa a Joint-stoek Company, 

tha jprorisionB of the stat. 7 Geo. ^ e. 46, by 
the im^i*'tff* of the shareholden were arranged 
indar Buuinw, the Master waa wrong. That 
!ef ao^ anaagement was this: tbatno remedy 
be anCaveed by any creditor except agunit tbe 
■Mveftoer; and the cases of Steward y.l>mn{\2 
Mae. ft W.65A) aod Bark^ v. Battren Xl Bear. 134) 
am aothanties oa this point. That, if no satisfaction 
anU ha ■rktr'— ' agunat the pablie <rffie«r, oxeention 
■Mht lis imar d againat nnj of the preaaat ahareholdets, 
«2th«t, and then oaly, execution might be imaed 



sad placed 



• Ih. St. — Ob appeal, the Lord Gbsnedlor, on being in- 
SB bad beeneeanneaeed egiiiist Mr. A^ss, 
to ataad mr nata tha aatlea had been 
UaUKtpwaaaaaafhw. 



againat any ef the former abaraheldefi^ who had aot 
oaMad to be ahanhoUm for thno yaua AUtUawM 
aaaetedbTtholSthaactieaoftUastatato. Theyoon- 
teuded, that the policy of the act 7 Geo. 4 wm, that 
the existing manuiem of tha Compaay wwe, prinaA 
&e>e, the penooa to diaahme tha oUigatiotH; aad 
that, until the iMMdiea a^at them fiiiledw fenaar 
ahHreholdera wen exempt noia salt; aad. tnwelbnL 
none of the fermw aharebildera ioald propMir be i^aoaa 
npon the liat of oontribntoriea antil the whole of the 
remedies as aninat the praaent ahardtoldm were fblly 
whaasted. They also contended, that the list waa iio- 
woperly made, an the groimd that the name of Robert 
Hawthwn had been placed then at tha aad 
npon tbe reqaidtion of one Robaon, who was himself a 
ooattibatory, UaUe beyond all gasatiea before Robert 
Hawthorn It waa alao obaerred, that the eartifiaato 
of the Master dalifand to Bdbari Hawthorn dUamd 
from that entered on tha record. 

ilassa, ^liyd; and ifetHflosi, who appaand for tiw 
Company, wen not caUed on. 

Kkiokt BavcE, V. C. — It appean to mav that, oa 
the preeent applioatioD, I ong^t not to ooander aa n** 
terial the dmerence, if then ia any solid dtSaanoe^ 
between the oertiiieato dclirerad by the Master at Mr. 
Hawthorn's nonest, aad the autheatie liat settled by 
the Maator. It seema to me, that, for erery prea oat 
pnrpoae, tbe certificate is good for nothing, so for aa 
there is a diflb r epee- a sabataatial diflfenaoe — from the 
list. The next eonaiikitatlan ia, whether, aa Mr. Haw- 
thorn is bmcht hafon the Master, nndar tba Slit 
section, by Robaoa, a ahanbolder, aad not the ofBdal 
manager, Mr. Hawthorn ia improperly en the Master's 
list. apoB the aasanmtion, that, as between Mr. Robaon 
and Mr. Hawthorn, Mr. Robaon U adely Uabkt I 
think it ia not DaceaBaiy to nra any opinion whether, 
as between Mr. Robaon and Hr. Hawthorn, Mr. RidMMi 
is solely liable. However this may be, I am of opinion 
that t&r. Hawthorn is not improperly on the list, merely 
because Ur. Robson was the means of briogbig him 
there. Tbe main queetion ia, whether Mr. Hawthorn 
is a contributory within the 3rd section of the act of 
184^ which says, *'Tbe wmrd *c(mtribatory ' shall la* 
civde erery member of a Compaay, and abo every 
other person liable to contiibnto to the pnmaat of any 
of the debts, liabilitiea, or loasea tbarab^ whetim aa 
heir, devise^ exeeator, or administrator of a daoaaaad 
number, or as a former mambw of the aame, or aa hei^ 
doTisee, exeontor, or administrator of a fonnar UMmber 
of the same, deceased, or otberwiae howaoever." Now,, 
aa I undetstaad the argumenta urged in this case, they 
have all kept dear of this particular state of thin& 
namely, ttie pouUon aa b^ween tbemaelTes of the 
rarieas persoas who an in Mr. Hawthorn's pontion. 
It is probable that there are many sndi persoiu: there 
is clearly one, namely, Mr. WiUiam Hawthorn ; and 
one raises the qoeetion as effectually as many. As be- 
tween Mi. Robert Hawthorn and Mr. WiUlam Haw- 
thorn, and others In the some poiitiMi, thne most be 
liability to contribute, as the case may arise of dafidowy 
of peiBoos primarily liable, which may lead to the n^ 
cesrity of proceediug against them. Clearly, as between 
these, tbm must be contribution, or a right to oontri- 
bation ; ud, therefore, liability. liow, what the Mas- 
ter baa done at preeent is not to dedde the order and 
course of liability between the persona liable. Tbat 
arruigement is to take place hereafter ; for, by the Stth 
section, it is enacted, ^ That at any time before the 
whole <tf the aseeta of such company shall have beea 
collected or coarerted, and if the asaeto renuuniiu : to be 
oollected or converted shall not be c^>able of being 
immediately realiaed, although such assets may not 
^pear to be inndWent, and also after the aaata of tha 
oompany shall have bean v^Mlly arhanatod, it Aall 
U lavftl for tha Malar &on time to ttaa to Mke 



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78 



JURIST. 



calls on the contiibutories, or on such individual con- 
tribniories or classes of contribntories as be may think 
proper, fbnt 90 far only as such contribntories respect- 
iruy ^aU be liable at law or in equity to pay the same ), 
as well for xdalnff sueli amount as may m neceswuy to 
par the dabta or liabilities, or any of the debts or lia- 
iduties, of such company, or any part thereof, or the 
coetfl, diargea, and expenses of wining up the same, 
as aleo for the pnrpoae of acUneting and settling the re- 
spec tire claims of eontribntorlea upon each other, or 
U|>on the company, whether such cliUms shall have 
arisen since or oefore the date of the petition for dis- 
solution and winding np, or for winding up, as the case 
may be ; and the amount to be raised by means of such 
calls, and also the residue of the assets and estate of the 
company afterpayment of all debts and liabilities, costs, 
chaises, and expenses, shall be paid and distributed by 
the official manager, under the directions of the Master, 
BO and in such manner as shall (as far as posnble) 
satisfy all sac^ olatme, and shall finally wind np and 
aettie the aflairs of the company." I repeat, therefore, 
that tiie Blaster has, at present not decided the order 
of liability between the parties liable; for that, by the 
section to which I have referred, is directed to be ar- 
ranged hereafter. The Master has found, that Mr. 
Robert Hawthorn is liable to all the losses, if any, up 
to the Ist January, 1847, inclusive. Now^ there is a 
aenee and purpose in which that proposition is true ; 
but that does not involve a decision that there is par jus 
between the different classes affected by the transaction. 
The order of liability is to be decided according to the 
rights of the parties. The only question is, whether to 
■da to the renisal (tf this motion a decJaraticHa that it b 
without prejudice to the order of liability; but I think 
this should not be made, though it may be undmtood 
as my^ opinion, that no question of the order of liability 
is decided. The motion will umply he refined. 



CASES IN BANKRUPTCY. 

Ex parte Tbitpler, tn re Gundry. — Dee. 11. 
Coatt — 7*0X011011 — Bankn^atty. 
Tlie Table of Cotta for Taxation of the BiUt ofSoIMtore 
in Bankrupted doe* not exetnaet in partwdar Cam, 
the Exercise of the Ditcretim of the Court. 
The petition in this case was presented by Measis. 
J. & H. A. Temple, solicitors, of Bridport, prayiiw a 
leview by thecommissioBerof the taxation of their bills 
of coats as solicitors for the petitioning creditor for the 
fiat opto the choice of assignees. The Mesm. Gundry 
were oankers at Bridport, and the fiat issued against 
them in November, 1847. and was prosecuted in the 
Exeter District Court of Bankruptcy; but, with a view 
to the convenience of the creditors, the meeting for the 

Eroof of debts and choice of assignees was appointed to 
e held at Bridport on the 2nd and 3rd December fol- 
lofring. On those days 661 proofo were made — fi70 by 
affidavit, and 91 by deposition; and of the former claee 
481 were by creditors residing at a distance, and they 
were charged by the petitioners 6e. each for penidng 
and examining them, amounting in Uie whole to 120/. Ra. 
They also chaiged in thrar costs 12L 12*. for attendance 
of themselves wd three clerks during the two days of 
tite meeting, commendng at ten o'clock In the morning 
and ending at half-past six each day. When the com- 
nissioner went over the bill, he allowed no more than 
fiO^ in respect of the two charges, that being, in his 
opinion, a proper sum to be allowed for the time 
which the proof of debts, if taken by depo^tion in 
court, would have consumed, and for their trouble 
and time in perusing and examining affidavits trans- 
mitted by creditora residing at a dis^ce, if such dis- 
tance were estimated on the principle which he, the com- 
missioner, stated in his allocatur. 
SwoHttM and J", y. Prior, in support of the petition, 



relied on the table of costs for the taxation of soUriton 
bills in buikiuptcy, that table havmg been s^ed b 
the comniissiouem appointed for that porpoee, and si 
finned by tiie Lora Chancellor, and which table, I 
reject cf the matter now under conaideratiiHi, cm 
twud the following item of charge:—'* For pcruui 
and examining affidavits of debt, with aooounts an 
aeearities trannnitted by creditors residing at a distanci 
or for preparing affidavits from such accounts and si 
curitiea, and sending them to the creditor to be swon 
exhibituig them to the Court when returned, and n 
turning the securities, if ui^, for each affidavit Sf." 
Bacon appeared for the aaawnee^ but was not called or 
Kkioht Bbdcb, V. C. — ify opinion is, that it m 
not the intention of Lord Lyndhurst, in sanctionii] 
that scale of fees, to exclude the exercise of discretio 
in particular cases. Inthat view, I think, the discretio 
has been properly exercised here. 

VICE-CHANCELLOR WIGRAH*S COURT. 

In the Matter of the Act 10 & 11 Vict. c. 96, and in tli 
Matter of the Trusts of the Settlement made after il 
Marriage of Beiuamih Gafvee and ELuntAH Gatvb 
—Jan. 16 and 19. 

Con^ruction— Separate Use. 

By a poatnuptial Settlement^ a Portion of the Wife 
Fortune toaa vetted in TVvateea, noon Tniat to pay ti 
Income to the Appointeea of the Wife, hut to that 
ahovld not diapoae of the same waji ofAnticipatim 
and in default of Appointment^ to pay it to the WiJ 
for her separate Vae. notmthitanainff har Coeertttn 
indqmdentfy ef A, B., (her thou BnabandL 10A0 IM 
not to intermeddle wUhthe aame,norwat Me mtmei 
heaubjaatohia Debta^^.; aritk Reaaainder oaer e^ 
the JOeeeaae of the Wife. JTie lady turtited A. Bi 
and, after a aeeond Marriage, joinM her aeeoitd Bat 
band in the Grant of certain Annnitiea,and in ^an^ 
the aame won her Intereat under the Settlemenl:- 
Jleld, that the Trust for the aeparate Uaa, and the Pn 
viao in restraint of Alienation, were confined to ti 
Coverture exiaiing at the Date of the Settlement, an 
that the Annuitiea were valid Chargea upon the /mm 
d'the aeUled Fund. 

Id the year I8ll, Hannah Poole, one of the thn 
daughters of Thomas Poole, married Benjamin Gafe 
At t^e time of the marriage Hannah was a minon an 
was entitled under her fotner*s will to property of eoi 
siderable value; but no settiement, or agreement for 
settlement, was made upon her marriage. After tli 
marriage it was proposed and aereed that 1283/. 6>. 

Krt of^Hannah a fortune, should be paid to her hai 
nd, and that the rcadue should be settied. Accort 
ingly the 1283/. Qa. 8(/. was paid to Benjamin Ga^ 
and a settlement of the residue was executed, dated th 
29th May, 1811, whereby the trustees were to pay th 
income of the trust-property to such persons and fo 
such purposes as Hannah should from time to time, b; 
any writing under ber hand, appoint, but not so est 
dispose of the same by sale, mortgage, or charge, i 
otherwise in the way of anticipation ; and in d^ult < 
appointment, to pay it to Hannah for her aeparate iu< 
notwithstanding her coTertnre, independently of Benji 
min Gaffira, who was not to Intermeddle wim the sanii 
nor wu the same to be subject to his debtA^ntracb 
or engagements; and the receipt or receipts of Hannah ( 
her appointees were to be discharges for the same; sn 
from and after hvt death, to the husband for life; aQ 
from and after the death of the survivor, to the cbildre 
of the marriage, according to the appointment of tb 
parents ; and if no appointment, to tbe sons at twenty 
one, Qud to tbe daugnters at twenty-one or maniag' 
but not to be payable until the death of the sorvivor c 
the parents; ana if there should be no children of th 
marri^, and Hannah should snrrin BeiganuO} tb 



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7$ 



vkolatroBl-noper^wastolMpudtolwr; aadifBen- 
jaam diMM aarriTe Hannah, then at hU death, mb- 
jKt to htr appdnbDocnt, the whola waa to go to her 
Mst oi kin, aoeording to the Statute of Diatribntiona. 
lWti«MM GaAei, the husband, died learing aereral 
cfcSorcB of the Marriage. Hannah so baeqaentlr married 
Adam BrowiMv whom she afterwards joined in exA- 
cvtiB^ eotain deeda ^rantii^ annuities, and tlurebr 
♦^laiyn her intereat in the tnut-propfl-ty with sucn 
aamatieL IW trustees paid the fund arising the 
irwgt rrtafii iato eoart, under the 10 & 11 Vict. c. 96, 
U an accMnii * In the matter of the tmst of the eettle- 
mrmt sftde after the marriage of Benjamin Gaffee and 
Haaadi GaflM." BCra. Browne now presented a peti- 
bsB ftr pajMBl of the diridenda to beraslf, notwttii- 
a ta n rfiw the dwge rfthc aanoities. 

Wtoimi Pmnam»t in snppwt of tlie petition, coin 
tc&ded liat tbe separate estate and the restraint upon 
ifiriyatisn were not confined to the coverture existing 
at the dale «f tho settlement, but continned throiigh 
crcry aobsf queat coverture of the wife. Hrs. Browne, 
tfacmoR, taej az;^ed, was not bound by the chaiges 
Miv***^ ^ income of the trust-fund during her 
mamA. cereTtnie. ( TitUeU v. Amutrona, 4 H. & C. 
390; S>tilmw^ Sonum, Id. 377). 

Tie Sttieilm^tmeral and Baetmf for the annuitants, 
oalBi d w ^ that, upon the true conatrueUon of the will, 
Aamftult estate and the restiBint npon anticipaUon 
wmeee-extatmn, and intended to be confined to the 
emtaie cxitfiBg at the date of the aettlenwnt. Ad- 
tbe authority ni 7U7<ff v. Armttromg and Sear- 
V. Bcrmmm, it had not been dedded by those 
■cues thst the settled property might not revert after 
the tsBiBition oi tbe coverture to the lady, and belong 
ha- as otbar ordinary propert;^. The present case, 
tfcej smed, was goTerned by Knigkt v. Knight^ ( Sim . 
m); Bmmm v. Benton, (Id. 126); Bradln v. /Tu^Aer, 
1^8^ which luul Dot been overruled, or even 
imriiBBed, by the decision in Tullat v. Arwutrong and 
B ib il a H ill t. Barman. [They cited also Barton v. 
Aw»^()ac 000); Btabiev. Add, (1 T. R. 193).] 

H'mi, m mdy. — ^Wben Beiuon v. Bm$oii, Knigkt r. 
Xmifk, sad Amdigr t. JBmffie$ were deeided, the Court 
was under the im^ession that the fttter upon aliena- 
fisB es^ attadi only upon a particular oovertnre, and 
niifc «p<a say fatare coverture. 

fFeOrnl Bedell appeared for the trustees. 
Sff JausWiamAM, V. C., after stating the facts of 
iW cay, said:— The ({aestion is as to the validity of the 
cfcarges apoo the tru»t-fand created daring the second 
ecTcrtsR of the petitioner. The law as laid down in 
TUfaa V. Anutrmg and in Setvhoroi^h v. Borman (4 
M. C. STT) is not in dispute. The only question 
whether the trust for the separate use of Hannah 
Sttmat,^thKm Hannah Gaffee), with the proviso against 
M t ki f f t iM i m , a, apon the true construction of the settle- 
aeitaf Ms^, 1811, confined to the then existing co- 
nrtn^ ar la gcnenl, extending to any marriage she 
at^^ eeotnet darinslife. The settlemmt is very in- 
Mietany vuded. The fint direction is to pay the 
■esae to aach pcrsMi as she shall from time to time 
■in si si, which, coepled with the direction against au- 
hrrpaiiua, moat mean from time to time appoint after 
it has bcctnu doe. But no definite time, as the life of 
HsBBeh, or the eontinnance of the existing coverture, 
is meatioBed, during which the direction is to be ob- 
etrved. Tbni follows, secondly, the direction, that, in 
defrolt of appointment, the trustees are to pay the in- 
esMe to the aepsrate use of Hannah, notwitlutanding 
ha c w e iUu e. StopfHog there, the question would be, 
vtaho- tba words ** notwithstuiding faar covertnrs," 
mA by |aitica actually married, do not, in point of 
wiiialiusi, mean the then present coverture. If thtt 
k Mbtfid, the acxt qaeaimn will be» whether that 
amias rf tbt wwdi is not fixed by the nftmiee whicb 



is made to the debts and engags M wrte of Beiuanin 
Gafifos only. Assoming, for the panMaes of the aign- 
ment, that the direction to pay to the separate vte of 
Hannah is confined, in construction, to the then existing 
ooverture, will not that necsssarily, or at least by rea- 
sonable eonstmetionj shew tliat the clause a«unst anti- 
cipation (nnllmited in terms) is to be restruned to the 
existing oovertnn also? It is merely pert of the ma- 
chinery, by means of which a gift to the separate use 
of a married woman is made enectnal, and no convey- 
ance in the simple case contemplates the one being more 
extensive than the other. It wss sdd, that if the clause 
against anticipation and the separate- use clause are co- 
extensive, and confined to the existiiw coverture, (and 
I thinic certainly thev are eo-extenriVe), there is no 
express gift to the win tax life if she sarvived her hus- 
band, eiuept io far as be implied from the direetiMi 
to pay the dividends aeeording to her appointment. 
This^ I think, is a just obsuvation. But the implicfr- 
tion (if implication be necessary where the property 
belonged to the wife, and she survived her husoand) is 
so plain, and the inaccuracy in penning the settlement 
so manifeat, that, if in no other respects the sejparate ose 
is limited in construction to the first mamwe, I am 
clear the omission to give the express estate mr life is 
not a reason for altering it. The result may, I think, 
be fairly stated to be, that, except the general power to 
appoint from time to time, which (standing alone) is 
indefinite, the language of the settlement points through* 
out to a provirion lor the existing nwmage. WitlwRt 
saying that the limited is the necessary construction, I 
find tTiree cases decided by the Vice-Cbancellor of Eng- 
land (Kniokt V. KnigAt, 6 Sim. 121; Sm$m v. Bmton, 
Id. 126; Brnd^ v. AyAe*. 8 Sim. 149) which I must 
overrule unlcM I adopt the limited eonstmeUon in thi« 
case. 

[The Court then made an order, direetin^^ payment 
out of the dividends of the fond in court, nist, of the 
trustees' costs as between solicitor and client ; secondly, 
of the costs of the annuitants as between party and 
puty ; thirdly, of the annuities according to their 

Erioritiee; fourthly, of tlie costs of the petitfoner, Hrs. 
'rowne: and, fifthly, of tiie balanee to Adam wowne 
during tlie joint lives of himself and his wife.^ 

COURT OF QUEEN'S BENCH.— BIich. Txuc. 

Savbrv e. LisTKH. — Abe. 24. 
TFkert a Drftndanfs TVaitf for pUading expirts on the 
lOcA Avgn^. the Plaintifv prevented, the Term of 
Reg. Gen., M. T., 3 Wm. 4,r. 12,.^w» signing Judg~ 
ment on the llM Amauet, 

In this case, a rule had been obtdned to set aride the 
judgment and subsequent proceedings for irregularity. 
The time for pleadmg expired on the lOtfa August. 
On the 11th August, the plaintiff ugned judgment for 
want of a plea. A summons was taken out, before 
Aldeisen, B., to set aride the jndgmoit. The applica- 
tion was refused, the learned Baron bdng of opmion, 
that the Reg. Cien., M. T., 3 Will. I, r. 12, did not pre- 
vent the plaintiff from properly n^ng judgment hi 
vacation in such case. 
Crompton now shewed cause. — In Morrie v. Haneoek 
1 Dowl. P. a, N. S., 320; 6 Jnr. It is said, no 
oubt by Patteson, J., that if the time for pleading ex- 
pires befora the lOtb August, the plaintiff may sign 
judgment whenever he chooses; but whenever the time 
for pleading expires on the 10th August, judgmoit 
cannot be signed on the lllh. And he gives the reason 
for the rule naving been framed in its present form. 
In the ordinary way, he says, a defendant has a ri|dit 
to plead at any time during the last day of his time »t 
pleodh^ and down to the time of t^ening the jddg- 
ment-oBce the next day— 4hat i^ until devu o^ouc 
the next uorotiv. But if, in neh ias t a n ess ■■ the 




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THE XURISIC 



ToeaaBt, where the time for plMdine exiriree ca the 
lOdi August, the plaintiff waadUowcd to «m judgment 
<m tbe 11th Aogoat, the defendMit would he deprived 
his time fat {deadiBg tm the BKoning of thai dar 
dvwn to deven o'okok: heewse, <« that day, he Is 
ptemnted by the proviso b tbelltJi sectioB of 2 Will. 4, 
e. 99t from deliTeiing a plea. Bat raaBrr jadgea at 
duunberB hare ^fiered. anl Ald«aon, B., m this oaae, 
dlffins from PatteaoD, in this interpietatioa of the 
nlft. It ia sabmitted, that the nde must be oonstmed 
BO aa to accord with the statute in virtue of which it 
was made ; and that, by the pnmr interpxetatioii of 
tbe statute, the del^idant shmtla hare tif^i days to 
plead, and no more ; but that, aooording to the inters 
jvetation of Patteeon, J., the rule giree to the defend- 
ant more than e^ht days, namely, until eleven o'dock 
on the ninth day ; and that, iher^ore, tbe dedakm of 
that hamed judge oannot be ■oppevted. If tha irotda 
«f the rale hacT bean **wlMn tune to plead expine 
'^ftm-' tha lOdi Angnst,** aa they an in the maii^nal 
Dale of Jervii^a Bnlni, ume woud hav* beoi na dif- 
fiea^y. The maiginal note is no part «r the rule; yet 
it b BBbmitted, tnafe the words of the rale, beinr am- 
btguoufl, must be coBctroed aa if they were as m the 
marginal note, and then the jndgmsnt in tUs case was 
projteriy signm. 

JojKA, contra, was not called on. 

LOTd Deioiak, C. J. — We do not think that the words 
in the rule are ambiguous. The words **nof60/i>r«" can- 
not mean ** afier," We think my Brother Patteeon de- 
cided rightly in Morrig v. Htmeoei. We see no reaeon 
§at readlDg the words of the rule in a different sense. 

GouBiDes and Eau, oaneumd.— iSiife atssfaM. 

HILARY TERM. 
Bbs. ff. The Inhabitants of Tacoutbstone. — Jva. 17< 

A Jiamary^ 1841, a Paupett tettJed in tke AppeBaia 
Pariih, vxu rttidimg with kix Wife amd Fawuifyin 
Tko Boom hired ^ tie Quarter^ being Part of a 
IhodliM-hoim in vU ReafmdeKt Parish^ and. being 
ma of Work, he went to the AppeUant Parith for the 
Pmpote of obiaminff Wort or RsH^, and woe em- 
pkjfidljfH., the Overteer <^ tim Pantkt and oon- 
Hnued to empiofed for Six or Seven Wedce^ during 
which he loMcd m the Poor-honte thmt, hang paid 
Wa^es bv H. At the End of that Time he retmmed 
to hu Wife and Famify, who, iMlet he wot oAvrnf, 
reeided in the tame 7W Boom, and were maintained 
Ihere hjf hitn, amd he reeided cA^rv with hit j^cmi^ 
wUil the Amlieation for a Warrant of Senmal:— 
Held, that the Pauper wot irremevable lif Sect, 1 of 
Stat. 9 ^ 10 Via. c. 66. 

Where an Animut revertendi enittt, it theuld befomd 
Iff the Sittiont, 

Appeal against a wanant of two justices of the city 
and coanty of Norwich, api^ed for and obtained on 
the 2nd December, 1846, for the removal of JvAin Gell 
and Elizabeth his wife from the parish of St. Martin at 
Oak, In tbe diy of Norwich and oounty of the same dty, 
to the parish of Taoolncatone, in the coni^ of Norfolk. 
The wanant was confirmed by die BacorderirfNorwieh, 
Bubject to tbe opinion of this Court on the following case: 
—The pauper, John Gell, whose settlement was In the 
appellant parish, had resided in the respondMtt parish 
more than five years next before a certain day m tbe 
month of January, a.d. 1841, when be was still re- 
sidiiw then with his wife and fiuaily, in two rooms 
hired by the quarter, being part of a dwelling-bouse in 
tbe raqw&dent parish. He was a weaver, and being 
on the day referred to out of work, be went on that 
day to the appellant parish for the purpose of obtaining 
wock or reli^ and was thsa eapleyed by Mr. Hovras. 
the overseer of that parish, and oonUnuad so employed 
bj Ua ftr • period «f lix or aana mcki^ haag 



which time he lodged in tiie poor-htwaa thn^ bug 
paid wagee by Mr. fiowea. At the end of Uw ax oi 
seven weeks, daring which be was so Muployed 1^ 
Mr. Hovras, he retunad to the renondent pariib k 
his wifo and fanily, wbo^ whibfc to vraa sa abiak 
redded in tbe same two rooms, and wen imiirtslni 
there by bim; and he resided with hb {unify la Ai 
leRKnulent pazish from the time of such rstam 
ana up to the time of the ^|dioatl«i fi>r the wsmi 
of rHuov^. For the four years noKt before the patai) 
of the 9 & 10 Tict. e. 66, ttkopaapar wtm in the mmp 
(rf'r^ef from the ^>pellantpariBh*: and on the pMiB( 
of the said statitfesnch rdief was disc(mtinned,aad)ii 
became chargeable to the re^ndent parish, to wUd 
parish he oMitinued to be and was chaigeule m b . 
and at the date of tbe said warrant of removaL Fn 
vioosly to those four years he had not been a piisat 
in a prison ; nor had he served her Magcafy aa a soW* , 
marine or sulor: nor resi de d aa an in-B c asla nsr ti 
GnenvriehOT Chelsea Hospitals; nor had ha bsea eoi 
fined in a lanatio asylum, or house dnhr lieensed ft 
the reception of lunatics, or as« patient in a hsapiM 
nor had ne reonved relief from any parish; nritinrha 
he been whall^r or in part maintained by any nte o 
subscription raised in a paridi in which he did na 
reside, not being a bonfc fide charitable gift. Tbe «t 
tlement of the pauper in tbe appellant pariah was no 

Jueationed; butitwasccMitended, thatthrot^hisnri 
enoe in tbe respondent parish he waa irrNnorsbl<v 
the statute referrod to, at tbe date of the wi d waiw iil 
If the Court should be of that opinion, the wsnsnt fe' 
to be quashed ; but if not, it is to be oonfomed. 

Patkl9miMMr,ia support of tha nderoCato' 
rions.^^ only qnestitoi whether the imroa^' 
abasnoeor the husband from the reapradeDt pviu u 
1841 wM not an interraption of tha lesideDce tbera 
The Stat 9 & 10 Vict, e.66, requires personal resldnae 
in the parish fiir five years next before the applic^ 
of the wairant. In computing the five yeai^ if it b 
found, that, for part thmo^ the residence ins n(rt n 
that puidi, the enaetiiu; clause does not apply. (Sef. 
V. Salford, 12 Jut. 791 ). Removal under an ord» a 
a disruption of rendence in the removing parish, (nj^ 
r. Seend, 12 Jur. 0S9 ; Reg. v. ffaUfux, Id. 789). 
And the fact of resort to the workhouse of the iq>peUsiit 
parish under the pressure of umot neoeeo^ or wattt j* 
employment is inconristent vrith continuous reMsnee u 
the respondent parish. JOoleriige, J.— A man'a ordinuy 
work may take him from hia own bouae. Brie,i.— 
Compulsion, vrith refermoe to thia subject, meaos leg« 
compulsion. Colmdge, J.— Aa for as the 
concerned, the hasMnd might have returned to toi 
house in the respondent parish at any time.] Unacr Btn. 
13 & 14 Car. 2, e. 12, there most be strictiy perwDilrau- 
denee; and there would be grsrt inconvenience inow^ 
ing that constructive residence is snffieimt to Ntiay 
9 & 10 Vict. c. 66. The husband oonld not be esnal 
poor in tbe appellant paririi, because it was the plan 
of his settiement If his settiement had not beea m 
tiiat parish, and he had become ohaigeable, it mig» 
have obtained an order at any time duriw the 
Bsven weeks to remove him to the plaes m his 
ment, on the ground that he had come to inhabit u ii> 
(Aw V. Wo(^, 4 Adol. & mi. 205). AgaiI^ if bu 
settiement had not been in the appellant P^^^ 
might have acquired one by renting a twwnieBt aid- 
ing his lesidenee there. lOOeridge, ^*'^15 
absnice of one day be enough to constitote a brw 
in the residence ?] On the fAhet band, if six or mtV 
weeks is not a break, a year would not be; st isi^ 
an absMioe for the pmod of forty days, which is 
saiy for eonierring a settlement, is a break. A 



* As to the affect ofaMhnliir, asa Av.T. AnMMi^ 
iin,(ia Jar.&IQ. 



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81 



■pt km tvD«miiHaiieanB and eononmiit settlenwnte; 
•Bi^ b omUi^ag tiic case of the wifo sod childnn, 
ttiM ■■■MnimiTI linnliinil TThn, if UviiigjUtheheM 
^ &nOy, is to U looked rt. ( iZ^. t. P«tt SMff- 
sBke, p.fiO). In qneadons of domicil, with reepect 
fto ttM enrebe of ot^oiiy eiril ligbte, the rule is. 



IKatlcAtes IB «o loco in qnem relegataa est interim 

• t-.L.^ H /n;„ UX. Q9 fit HTta 



Xnodl^" ft. 3V But thu most neembles the domicile 
4ie MeiMzseCtbeFtaKh law, which b thus defined : — 
* ItK teuabds Mtimn tat k Uen oik l^htunme n^ees- 
attamxA droit mx Mcoon publics ;** and as to which It ia 
' ne ponm exercer en m^me temper 
dm eomsQiMs, le droit de domidle de seoonn.*' 
mntMB Iftticmie, 15 Tend^miaire, an 2, 18 
, ITSe^ tit.fi, irt.1I; Beeneil G^6ral des Loia, 
fltc— T^ i, p. 48B, td. 1836). The recorder most have 
laM, &8t the hn^iuHl had not an animus rerertendi, 
imem m he that the absence was a break of the 
jnidcacv: at all emlB, he has not found that tUehus- 
laad bmd an animus reTertendi, and it cannot be pre- 
mamtd ftan the eutanutance of his keeping house by 
W aift aad ebSdiRi in the respondsnt peziui. 

B%t JMi'mtt (with him was Pumer), eontm.— 
& oanea doM Bsi lellnqaiBh Us readence, under stat. 
5 B Vkt c9S, hy a tempomy Toluntaiy absence. 
Jh» fotfom fir mieh the hmbaod went to the appel- 
katftaA vpem firom the case, and riiews that he 
kai MB aRBBS rerertendi. The cases of B. r. Somd 
(IS Jar. 330) sad A^. r. Halifitx (Id. 788] do not 
p mm AiSf heemu at in those eases the pauper was oom- 
;aBed ts rtmirve, and be would hare been ^ilty of a 
uriHBaaaer if lie bad returned to the mnoriDg pari^. 

If ot unless he became efaaimble.] At any 
ati, tike reriiimce was broken while ne waa being re- 
■srad odcr the order. fHe was then stopped.] 

ted ]>Dnu3^ C.J.— The last obserraUon of Mr. 
Brinv B itnknigi if the animus rerertendi is a iact 
tmmmj t» prercnt the absenee frmn b^g a tneak in 
OainiBM^ it owfat to hare bam CDond by the re- 
Mriv. Bvt we think that wa deariy see that itex- 
■M ia this ease; and the question of residenee is raised 
fif Ml nwMiliiialiiiii 
FATTasoai and Couamoa, JJ., oonourred. 

J.^ — ^If the animua rerertendi waa found as a 
Sattbjte «after seerions, it would always be eon- 
dam 4a&nKnsdence was unbroken for the purpose 
oritaLS&«Ykt.e.66; and, therefore, in this caee» 
the &cis are fsaai for our opimon independently of it. 

Lm<d DamuMf C. J. — And, therefore; where it does 
afaL it is impovtaot tiiat the qnartsr aeadons diould 

Hooui % Tmm Lohboh juny SouTH-wnnBii Rulwat 
CoatPAVT. — Jan, 31. 

A Ap im k ^ mm mkkk a RitU for ttOmff miek Jmdff-- 
mm wn mwimtd, Mated, that Me JudgwrnU waa 
i^-(Ur D^:''—ffetd, Oat tkt Jmat might i« 
imiai U U mmplf the Data. Foster v. Tattamll 

Oa *s4li ^SBSMMv, Plamtif ob^tmai a FanUet m a 
GsMt fried i^ra a Skarif m a Writ of THtl 
' ■ Saet. 17 tf Slat. 3 mU, 4, a. 42, ra- 
ts»H*aftsrf Jaiiiiiiij; stflartasMo Coata, he 
mm imJmmry .—Haid, that 
aifmi bafiart tts Xalim'aUijff woa 



Bole caning upon the defisndants to shew cause why 
^hajatonwt signed in this oaaae aad all^ subsequent 
IMMngs should not be set ande for irregularity, 

^ esilL The affidarit of the plaintiff's attorney, 

JKvUek the nds wm obtained, stated, that the writ 
tnl,firacftadto the Sheriff of Middlesex, in this 
cnHnsiMMd oat faj tba dapOMOt, punnaBt to the 



order of a judge, made on the 4th Norember last; that 
the day ongiully inssrtad for the return of the writ 
was the 8ui January, \B4S, and that notioe of trial 
waa giren by the deponent for the 14th December last; 
that the trial was put off from the said 14th December 
last to the 4th Januarv instant, in consequence of the 
want of time to try the action on the first-mentioned 
day ; that, in pnrsuanee of an order for that pnrposs, 
the deponent altered the date of the retain of the writ 
of trial from the 8th to the 22ad Janaaiy instant ; that 
the oanae was triad on tho dUi Jannaiy inatant; that 
a rerdiet waa found tar the deftndanta ; and that tha 
depoDont was, on the 12th Jannaiy instant, serred witii 
nolfea of taxhv the oosta of tha defondants in this a^ 
tion by the demtdants* attomiee; snd that he did, on 
the Iwi Janoary, prerioos to making this affidaril^ 
search the judgment-book in the ofice of the Maateis 
of this oonrt, and found that Judgment was signed in 
this acticm against the plaintiff by the defondants thla 
day ; and that no certificate for speedy execution was 
giren by the under-riieriff, who prasided at the tiiaL 
The jurat was ** Sworn &e., this 13th day of imxmy, 
1849." In this Term, (Jan. 2Mh), 

Sa^ shewed caose.— First, the affidarit ia dofoctir* 
in not stating the day on which iudMoeiit waa signed : 
and the jurat cannot be rehnad to mr the purpose cl 
supplying the de{wt- (.^Ww r. TaitaraaU, ante, p. 33). 
If It were refoired tow the date of the foot depoead to la 
the affidarit would ha fixed by a statement not ^POA 
oath; and the jnra^ though drawn up by an omoer 
of the court, is not entitira to so much oredit as suoh 
a statement An affidarit may be made at one time 
and sworn at anothsr. fLord J ^w w aa , C. J.— Tha 
great poeribility of that nappenlng was one of the 
oonsiderationa whioh inflneiued as in dccidiiq; Etha 
cass of Faitar r. Tattaraall. Tha jnrat only eertifiea 
the time at whieh the affidarit was sworn.] Upoa 
an indictment for perjury, a deponent ought not to be 
bonnd by the jnra^ wiiieh may be erroneous by n^li- 
gsncfe or by de^gn. Secondly, upon general principle, 
manmieh aa the sheriff may return the writ at aay 
time, the party haring the rerdiet ought to be able to 
proceed, as in other cases of writs, immediately after 
the ntnm is obtamed. By sect. 18 of atat. 8 & 4 
Will. 4, 0.^ it is enacted, "That, at the return of 
any snch writs of inquiry, or writ of trial of such issue 
or issDcs as aforesaid, costs stiall be taxed, and jadg- 
ment signed, and exeention issued forthwith," onleas 
the aheriff or the judge eertify to the contrary, or a 
judge of the superior courts order tiiat execution shall 
be stayed. The words " at the return of any such 
writs*' cannot mean the ratum-day of the wriL whathsr 
the return has been made or not, because the aheriff 
oa&Dot be ruled to xatna the writ until after the nond- 
nal return-day, and coata cannot be taxed and iudgnaeat 
signed unless the writ lias been returned. [Oalmt^ 
3, — Botii the preceding sections direct the return to be 
at a day eertam : has uiedieriff aright to send the writ 
back sooner, if t^e law has giren the defendant a certain 
time? Wi^OmaOy J.—U ho has, he may in effiwt 
rire speedy enentionO This oonstruotion will oarry 
into aSact the object of the statute^ which was, th«t 
there should be ^eedy execution, which may otherwise 
be delayed by aeeideator derign. Whan the writ iara- 
tnmable on a given day, it is ths kst on which the writ 
can be obered ; but ue sheriff may execute it aoonar. 
In ilOMw r. JMoM, (2 D. & L. ni ), the Court, on tte 
motion of tha defondant, ordered the aheriff to retnm 
the writ fbrthwitii ; and no mrdar was made to m m i 
the writ. [ Wigktman, J.— That ease is against you.] 
[He alao died JffdMb r. Ckambara, (1 C, H., & B. 
38S; 2Dowl.fl08). 

Jafcay contra.— The objection allowed in Faatar r. 
Tamtaatt, (ante, p. 32), in this court, haa been rinea 
taken in tiw Conns ef Common Pisas and £xoheqnct. 



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83 



THE JURIST. 



and has not preTailed. An indictment would lie upon 
this affidavit : a deponent mnat be taken as deposing 
at the Ume of the date of the jurat. 

Lord DxNMAif, C. J.— We will eonaalt the other 
judges npon this prelirainaiy ohjeetion before we hear 
yon on the other point. 

Jm. 31.— Lord Dekujlv, C. J., said— In Jbrter v. 
TaUenall we were referred to a decision of Maule, J., 
in the ease of ffupka t. Stowm, (4 D. & L. 788 ; 7 
Scott, M. R., 017; 7 Jnr. 1196), holding, that the 
jurat of an affidavit could not be looked at for the 
purpose of supplying a date omitted in the affidavit. 
On the argument or this case, we were informed that 
both the other Courts had expressed great doubt as to 
our decision in that case ; and our Brother Wichtman 
has since seen all the judges, and in particular my 
Brother Maule. They all agree tliat the jurat may be 
looked to for the date of a fact deposed to in the affi- 
davit; and Brother Maule says, that the report of 
the deeiuon in HughtM v, Browne is mistaken with 
reference to the facts of the case. Our decision in 
FoOer r. TaUemUt aroee from a desire to bring about a 
oniAtrmity of deeiuon on the point; and tiie decUon 
being in favour of accuracy, I hope Uiat no inconve- 
nience will resnlt from It The preliminary objection, 
therefiine, in this case cannot prevaiL 

Pattbsok and Colbridob, JJ., concnrred. 

WioHTMAN, J. — In Huahea v. Browne, the fact was 
stated in the affidavit as naving occurred on " the day 
of the date hereof;" whereas au affidavit has no date. 

Joyeej contra, on the second point. — The judgment 
is insular: nothing could lawfully be done upon 
the writ until after it had been returned. Tlie state- 
ment in Archbold's Practice, by Cbitty, p. 418, 8th 
edit., that the plaintiff may get his costs taxed and 
sign jud^ent, and lame exeention directly after the 
v^ict IS obtained, even on the same day, Is thna 
qualified in the Addenda, p. Ififi6: ** if it be Uie return- 
day, but not before." In NiehoU* v. Chamhert, as ap- 
pears from the report of the case in 4 Tvrw. 83fi, the 
question was, whether the judgment was signed in time, 
within the term '* forthwith ;" it was signed after the re- 
turn-day, and, tlierefore, this point was not raised. If the 
attorney abuses the authority of the Court, b^ making' 
the return at an improperly distant time, he u respon- 
sible to the Court. [Coieridge, J. — Your construction 
of the statute is open to the objection that judgment 
might be signed without a return of the writ. Wigiit- 
fiMR, J. — The form of judgment for the plaintiff after 
trial by the sheriff, given by Reg. Gen- Hil. T., 
4 Wai. 4, (3 B. & AdoL xifi), hf "Afterwards, on 

the day of , in the year — came the 

parties aforesaid, by their respective attomies aforesaid, 
and the said sheriff before whom the said issue came 
on to be tried hath sent hither the said last-mentioned 
writ, with an indorsement thereon ; which said indorse- 
ment is in these words; to wit, &c. Therefore it is 
considered" &c. The dar of wgning judgment is men- 
tioned, not the day of the retum.1 That is in pur- 
snance of the rule, that judgment shall bear date of the 
day on which it is signed. X Wightwtan, J.— Suppose 
the writ is Tetnmable on the 20th, and judgment is not 
abined nnUl the 26th, the fonner day would not appear. 
Cneru^ J^Sappoie the attorney practises an abuse 
in making the ntmn-day too distant, the Conrt may 
Older the dteriff to ntum the writ before the retnni- 
day. The jodgment signed in Billing v. Railton, (2 
DowL & I.. 771), though not signed on the retum-dt^, 
ma rMnlar: the retnm-day was not altered. WigM- 
noH, J. — The return-day would not appear on the re- 
cord when made upj This point was not taken In 
BHUm v. RailUm. In jury process and other proeeed- 
ings the return means the retnm-day. 

Lord Dekium, C. J.— I am of opinhn that the Jndg^ 
ment in this case was rigned too aom. 



PATTBBOif, J.— The phrase, " at the return of i 
writ," in sect. 17 of stat. 3 & 4 Will. 4, c. 42, m 
*' at the return-day of such writ." T do not see ' 
right the sheriff lias either to anticipate or postponel 
retnm of the writ. 

CoLBRiDoa and Wiohtiiak, JJ., concurred.— J 
abfoltUe. 

BAIL COURT.— MicuEuiis Tbsm. 

Ghisun v. Deeir. — Nov. 24. 

Comtv Courta—Q <5[ 10 Viti. e. 95, a. 1 20— Jmnfu^ 
Suggeation in order to deprive Plaintiff of Catt, 

Where Ordera for Advertiaementa in a New/paper i 
gisen at an Office situate within the Juritdiaion of 
Weatminaler County Court, and the Defendanl'i Pi 
of Ruidanec wa» alto ^ere, htt the New^^ i 
printed in the (M^ of London- — in an Aetion far 
Recoeery of the Price of interting the Adeertismt 
a Verdid having been fmndfor the Plaintiff for 61.' 
on Motion to thit Court, a Rale waa mad* aotolttie 
entering a Saggeatton on the Roll, in order to dep 
the Plaintiff of hia Cotta, under Sect. 120 of the 9 ^ 
Vict. C.Q5. 

Quaere, if, under euch Circumatancea, the Cause of A' 
can be aaid to have arisen wholly or in some MOti 
Point within tlie Jurisdiction of the Gomtji Cm 
within which the Defendant dweU or carried on I 
Basinets, within the Meaning of Sect. 138f 
Tliis was a rule calling on the plaintifT to iliew cau 
why he sliould not bring in the record, and carry ii 
the judgment-roll in this cause, hi order that the it 
fendant might enter on the roll a saggestion to deptiT 
the plaintiff of his costs, under the 120tb section* ^ 
& 10 Vict. c.Off, or why the plaintiff Bbonldnotb 
restrained from entering up judgment for bis cosb 
Tlie following were the facts: — In July, 1848, tb 
plaintiff, tlw registered proprietor, and eubsequent! 
the publisher, of the Satirist newspaper, bronght a 
action in tlie Court of Queen's Bench against the d< 
fendant, who carried on buBioess in Oxford-street, I 
recover the sum of 61. 5a. for inserting twenty-fi»^' 
vertisements, at Ha. each, between tlie months of Oct* 
her, 1847, and March, 1848. Tlie declaration wui 
the usual form, for work done and materiab pronded 
to which the defendant pleaded nunqnam iitaebitatn 
The cause was tried on the 27th September, before tt 
Under-sheriff for Middlesex, when the plamtiff no 
vered a verdict for 6/. St. On the same day a lummoi 
was taken out, calling npon the plaintiff or hisattome; 
in simihir terms as the present rule. ThU summoi 
was heard on the 17th October, before Mr. Justice W} 
liama, when it waa contended, that, inasmuch as u 
office of the plainUff for the publication of the Satin 
newspaper was situate at No. 12, Catherine- nr« 
Strand, being wltliin the district of the Wtttounw 
County CouH of Middlesex, and the place where U 
order for the insertion of the advertisements waa giv« 
and the defendant resided witltin the jurisdiction of tj 
same Court at the time the action was brouebt, u 
phiintiff ought to have levied a plaint in the WMtam 
ster County Coart. On the other hand, it wm 
tended, that, the Satirist newspaper being V^JfJ 
an office in Ou city of London, it oonld not be aaid w 
the caosa of action arose within the jurisdiction wiui 



• Sect. 129 of 9 & 10 Vict. c. 95. cmcU, *' Th^ ^ ^ 
•ctioD ihall be conmcnoed, after the pust^ <^ 
any of her Huesta's mperior coorts of reomd, for aaj om 
other thin those lastlf bereinbefora specHled. for whu* 
plaint might have been entered in any court bolden under w 
act, and a verdict ahaU be found fiw tbe riaiotiff for a «« » 
ibao 20/. if tbe said Betion be founded on oantraet, or» 
timn bt. if foaoded on tort, tbe said plaintiff abill UM 
meat to reoovcr sndi som omlj, and no eoats." 



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THE JURIST. 



88 



wback the icfcodut dwelt or earned on hie bnnnces 
«t tfae tnM of the ftction bnmffht, within the words of 
4w atitate. Williiins, dedined to make an order 
wm YKPti^ iMit Mdeicd, that, on payment within five 
di(r»«[thi6LSi^th« debt doe from the defendant to 
thm pUatiff w Us •tt<»nej, all proceedings should be 
■ftkjvd M U» fifth day of Um ensoing Michaelmas 
T«nfet^"i^*^wrtogiTe the parties an opportunity 
«fi cniuagtofte eooit; whereopm the present rale 
•^rws «fatabi[i,igHiiat wUeh 

Tfayfc, ttis V* (Nor. 24), shewed cause.— The 
— is vhtther this action ought to have been 
_ ia tlie coiiiitj court. Tliat depends on the 
jwMker tke wm of action arose within the juris- 
I o( tht toonty eoort, within the meaning of the 
I of the iblste. Although the order for the ad- 
ni RcriTed in C^herine-etreet, Strand, 
Avn^iflgiftkeocwsMper took place in Fetter-lane, 
4ftcdg if Insdaa, which is out of the jurisdiction 
Cfce WesbuHlcr Conity Coozt. How can it be 
IhcRfo^lhittlieenseof actioa arose in Cathe- 
rka, in fvA, the work was performed at 
«BB '^MiatiBg-tfiK ia Fetter-Iaoe t In actions for libel, 
aSnwM^tltecawof aetwa may have arisen in two 
or nnc (wutia , u if writtcD in one and published in 
■OMihcr ceotjitke Court will not change the venue. 
X ^ a Uam, J.-|joBbt whether the act as to changing 
uie rent nsAf be the same, because changing the 
WMW ne/rfieontlKgraaDd that the cause of action 
mime ia a patkuitt eonnty. It is more like bringing 
tk» nam itckatm undertaking to give material evi- 
dtawe in tbr conntj to which U is so brought back.] 
TWtnraHteactMflftbeaetiathatpntnpmiU by 
Xr. AmaAjdendB,Tii. that the eonnty ooarts have 
jBia&rifln*'if noBsterial pariof the cause of action 
nas 09tefth» jDrisdietimi.'* The words of the ISStli 
Mtiaa air, " That all actions and proceedings which 
! tbr fMSHDg of this act might have been brought 
tte sa;«rior courts of recoH, where the plaintiff 
Bare than twenty miles from the defendant, or 
' tit cause of action did not arise wholly or in 
■ Eateial ptnnt within the jntisdiction of the Court 
wjE&flB whaeh the defendant dwells or carries on hi« 
hmamtm at the time of the action brought, may be 
b w aght aad determiDed in any such superior court *.*' 
Is Itmi V. Bitia, (17 Law Joom., N. S., ^ B., 180), 
tk WM Md, that biUs of exchang^ were within the 
jtoMietiaB af tiw eonnty eovrts, wthongh the Court 
tiSwAenar man to have thrown a dwht upon the 
Mttar. The printing here was in the city of London. 
Bear eaa it he sud tut the eaose of action arose within 
AejBriadietioa of the Court where the defendant dwells? 
TPiOena, J^The printing is a material point.] Un- 
T l y s h i nny ; ad, aoeording to sect. 128, the cause of ae- 
tisa dMly did not ariaa in aome **iiiateria! point" 
wffln thcjorisdiction. 

XmI, contra. — If the contract was executed and the 
w«k diae at tbe printing-office, the eonatmctton put 
wfm the act would no doubt be right ; but such is not 
Mk Sqmoaaig it were, the effect there would be, to 
lads the act in a neat measnre nngatory ; for a 
havii^ a mtoiy within Temple-nar and a 




• IM. 12S «r 9 ft 10 Tiet c M, eaaoti, " Tliat aU aetiou 
■dffwndngi wUdi before the pasiiog of this set might 
km hem hnM^ ta aay of her Mqes^'s soperiw ooarts of 
Mwd, vtan the pluotif' dwdls nofe then twentj miles from 
Iks MBdast. or when the cease of action did not sriae wholly 
« Bi SIM Mtcrid point within ^ joriadictioa of tbe Coort 
latm wUA the d ffcnda n t dwelb or carries on his barineis 
4thf teeoT the action broagMr oririiere as; offoer of tbe 
(SMf cpvt AaO be a psrty, except in respect of inj claim 
nwf goe^ sod chattM taken in exeeotkm of tbe process of 
Cnt, sr the ffoceeds or valae thereof , m^ be brought and 
dNBnri m wmj toA saperkir oourt, at the eleetkm of tbe 
fi^ 1^ « pneeefiH* M if Ihk act had not been pasMd." 



shop outside for the sale of his goods which he manu- 
fiKtnred at the feototy, upon every sale might say that 
the oontract did not arise wholly or in a material part 
within the jurisdiction of the eonnty court for Middle- 
aax, although th« sale took {daea, and both himself and 
customer rewded. In Middlesex. This manifestly ooold 
not have been the intention of the fnuners of the ut 
when passsd. It Is true, the 128th section glvea the 
party suing the option of doing so in tbe superior conrt^ 
where the cause of action does not arise in some " ma- 
terial point" wiUiin the jurisdiction of the county 
court Hoe, however, is an acti<n by the proprietor 
and pohlislier of a newspaper, whoee place of burinese 
is in the Strand, at which the order for the adrertiss- 
ments was given, and tbe oontract, in feet, made, and 
the newspaper published. How can it be said that the 
cause of action did not arise within the jurisdiction of 
the county coort ? But then It is said on the oppoalte 
ride, ''Tliat ts true; but we execute the order in the 
dty of London." The dedsioni on the jurisdiction in 
cases of hills of exchange can have nothing whatever 
to do with it. The true construction is, that when no 
part of the cause of action aroee within the jurisdiction 
of the oouoty court, then the plaintiff is not bound to 
go there. If it did, why then iw goes there at his peril. 
[PatUtotty J. — Where Is the case my Brother Aldetson 
referred to?] It ia the case of Sutler r. Cant^, (17 
Law Jonm., N. S., Exch., 265). 

TmpU.—lt will be seen, that, by the Bfith sec- 
tion, which gives power to summon witnesses, it must 
arise wholly within the jurisdiction. What power has 
a judse of one court to summon witnesses ont of the 
jurisdwtion ? [PtOtmm, Jv— That has nothing to do 
with the canes of action. It may he neoessaty to sub- 
poena witnesses 100 miles off.] 

Pattbson, J. — According to Butlerr, Cornet I ous^t 
to grant this rule. Tbere the Court seemed to think 
the rule should be made absolute, in order tliat the 
parties might have an opportunity of rairing the oues- 
tion upon the record ; for then the construction oi tho 
statute would be open to argument. Following that 
decision, I think the rule in this case must be made 
ahsolnte. I confess I should not have dreamt of such 
a construction as my Brother Alderson seemed to think- 
tlie statute was capable of bearing. This makes the 
doubt, if I am right, in the construction I am inclined 
to give to the meaning of the words ** If any material 
part arise within the juriadietiMi." He certainly baa 
r^ssd a doubt in my mind. Tltis rule, however, must 
be made absolute, for entering a au^lestion when tiie 
question may be determined elaewhae.— Anle aise^rte 
^ muring a mggeiiwH* 



APPEAL TO COURT OF COMMON PLEAS 
UNDEU REGISTRATION OF VOTERS ACT. 

{Bmn^ ^Harwich). 

Poun^ Appellant, and Attwood, Bcspondent.— iVov. 13 
and 17. 

AM$ltUmt Osw s w^-W Gto. 3» c. 1^ and 6 if 7 Viet, 
e. \^-^3enk» ^Notice if ObsecHom. 

A Senriea ^NeUm O^eetka upon an Attulant Over* 
njppoinUd to perform alt tie IhUita of an Over- 
Mer, pitrauant to 6U Geo. 3, e. 12, «. 7, u a tnjie^ 
Servieet witiin Me meamng €f G 7 Vict, c. 18, w. 17 
and 101, aUioueh ie hoM not made oat orttgnedtke 
Liat ef PUerg objected to. 

It it not etetntial to the Validity of an Appointaient of 
an Auittant Oeereeert under bti Geo. 3, c. 12, t. 7, 
that eueh Appointment ehould be eonjtrmed fy the Poor* 
law Commieeionert. 

Case. — At a court for the revision of the list of per- 
sons entiUed to vote in the election of members to serve 
in Parliament for the borough of Harwich, hidden at 



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« 



THE JTTRIBT. 



Hsrwiefa on the 28th S«>tem1}«r, 1848» hy and befiwe 
the Barrister dolr appointed to Tevise Una said listL 
William Points oojeoted to the name of John Attwooo 
being retained upon the list of persoiw entitled to rote 
in the election of members for the bozoog^ of Huwidb, 
in respect of property oocupied i^thin the parish of 
Doverconrt. The notice of objection reqnind to be 

£'Ten to theparty objected to was duly giVen to John 
ttwood. The question in this case wag, whether the 
notice iff objection required to be g^ren to the oTerseers 
of the parish, who shall hare made oat the list in which 
the name of the person objected to shall hare been insert* 
ed, was duly riren. ( 6 & 7 Vict. c. 18, es. 17 and 101 ). 
Richard Meadows and John Sparrow are the r^olarly 
l^pointed oretseers of the poor for the parish of Dorer- 
conrt, for the present year, 1848. About two years 
ago, George Cooper was appointed by the parishionras 
asristant overseer, and has since continued to act in that 
capacity, sssisting, acting for, and, in foot, discharging 
alt the ordinaiy anties m the ovaneets. Cooper's tm- 
pointment has not been contirmed or sanctioiiM by the 
Poor-law Commissioners. Meadows and Sparrow to- 
gether made out and rigned the list of roteta aoA tiie 
list of persons obieoted to reepeetirely, as the orefsaers 
of tiie parish. Cooper took no part in makiog ont, and 
did not sign, either of the lists. The notice of objection 
required to be giren to tiie orerseers of the parish, who 
shall hare made out the list in which tiie name of the 
person objected to Is inserted, was left at the place of 
abode of Geo^ Cooper, at twenty minutes past eleren 
o^dook at night, on the 20th August, and was by Cooper 
ddirered to Meadows some time after the 26th August. 
The oTwaeers iifterted the name (rf John Attwood in 
the list of persons obieoted to. On hehalf of John Att- 
wood it was objected, that notice of the objection had 
not been duly giren to the overseers. For the objector 
it was oontuuTed, that John Cooper, by his appoint- 
mant as assistant ororNvr, and discharge of the dnties 
of the overseers, was an orerseer of the parish for the 
purpose Id (inestion,by rirtue of the 101st section of the 
acte& 7 Vict. c. 18; and that the notice might be giren 
to an overseer or to any peison whose duty it mint be 
as orerseer to act upon the notice; and that, in foct, it 
was adopted and acted upon by the insertion of Att- 
wood's name by the oveneera in the list of persons ob- 
jaetsd to. The reriaing barrister dedded, that notice 
of the objection had not been duly g^ren to the orer^ 
nen; and, eonseqnentiy, the name of John Attwood 
was retained in the list of rotera. The same question 
arose as to the name of Thomas Fuller being retained 
town the list, which was decided in tbeaame way; and 
the appeals against these dedsions were directed to be 
consolidated. If the Court should be of opinion, that 
in the abore cases the notices of objection were duly 
M'ran to the overseers, the names of John Attwood and 
Thomas Fuller are to be expooged from the list of 
Toters, (if the Court should think fit), otherwise th^ 
are to be retained. 

KingkUte, Seijt., for the appellant— The question in 
this case is, whether the service of notice of objection 
won tlie assistant oroMs e r waa a snffieieDt service, 
vithin the meaning ofthee&7Tfa!t.c 18, s. 17; and 
it Is submitted that it waa. Sect. 10 enacts, that the 
town-dak is to hare fmna of precepts, notices, and 
lists printed, and before the 10th day of « lune in every 
Tcartooanae to be delivered to the overseers of the poor 
Ida precept, and a suffident number of the printed 
forms of notices and lists. Then, br sect. 13, the said 
orerseers shall sign and publish the lists of persons en- 
titied to rote. £mA by sect. 1 7, erery person objecting 
dial], en or before the 25 th of August, giro, or cause to m 
given, a notice according to a given form, or to the like 
effset, to the overseen^ who sbidl hare n^deout the list 
in which the name of the person so objected to shall 
fa*re been inaeitad &c In the p r easnt inatanc^ George 



Cooper, upon whom ih» notice of olgeetton wss msd j 
did not sign the lists, which were prepared uidp^. 
lished aooording to the 13ih section; but that eircan , 
stance is immaterial, as it is clear tiut he was aa on . 
sser aooording to tiie interpretation given hi sad 
101 — a person who, bv virtue of any office or appt^ . 
ment, shall execute tne duttea ni orerseer of the poe 
by whaterer name or title anch person may be cuUj ' 
and in whatsoever manner he may be appomted. 
judgment of Wilde, C. J., in Bamlm v. ^oeiM, (1^ 
Law Joum., N. S., C. P., 63), is condosire on 4 ' 
point. Referring to the lOlet section, he says, "IW ' 
words ^pear to me to point out the overseas of 4| , 
pariah for which the list is made, and not the partieBlr 
overseers who made or dgned it.'* In that case thear 
vice was on the churchwarden, who had not ngned tt^' 
list; and it was held suffident. What distineticn oi ' 
be drawn hetweok swrice <m a dmrohwardea sad m- 
viceonan asriatantoreneer? Aa to Cooper's an'<^ 
moit as an assistairt O T S M ser, that ia rwulatM h 
60 Geo. % 0.12, s. 7. The oaaa finds that he waa ■ < 
pointed by the parishionera two years ago, and ^ i 
has sines acted m that capadty, and discharged all 4^ 
<»rdinary dutiea of the overaem. StimgUfr r. Smii^ , 
(11 Mee. & W. 603) decides that this waa a valid Mj 
pointment. That it has not been confirmed by ft 
PoOT-iaw Commiadoners, is wholly nnimporUi^ 11^ 
duty of making ont the lists, receiving notices of clu 
or of objection, foil witlun the ordinary dntiea of ormr, 
seers. If Coopw was entttied to interfere stdlio thia 
lists, it was br rirtue of his appointinent, and that wa 
without any limitation. His act has been adopted bj^ 
the overseers, who recdved the notice through t^^"^ 
acted upon it; and, consequmtiy, then is no bmlq 
in the case. . . 

JfylWy Seijt., for the respondent.— The finding of ft 
reridng barrister, that the notice was not duly giro, 
is condusire as a finding on a matter of fact. low- 
peudentiy of that, the serrioe was made in an io'I^P^ 
manner, and upon an improper person. The case fiiwi 
expresdy that George Cooper did not make ont thi 
lists ; and though, as fiir as r^^rds the other duties of tiU 
office, he might blare been assistant orerseer, still he wm 
not tne proper person on whom the notice of ebjaenoi 
ought to hare been serred, under the 17th section. U 
the case of .Ssaiisii r. Bod^ it did not appear that tiu 
churchwarden who omitted todgn>M>d upon wbomuu 
notice of ohjeeti<m waa anred, bad not made oat uu 
list; and ttie deei«(m, •» for as it ^bcts. the preW 
oaaa, was oztra-judidal. The appdntment maat beb] 
a warrant nnder the hands and seals of two j^'^^ 
and, to asoertain his dntiee, reforonoe must be made u 
the warrwt. The Court will not assume that it «■ 
Coopet's duty to make out the lists, or to reiwre U< 
notices of dum or of objection. (Rtx r. 7S« 
0/ Warwieithire, 6 Adof. & EH. 873). If, howww 
an appointment under the 7 & 8 Vict. c. 101, s-g^ 
relied upon, in that case it is not confirmed by the 
law Commisdoners, who have " the same powen, witl 
respect to all assistant overseers, aa are giren to 
by4&fi Wm.4,c.76,s.46, with rapeet to paid o» 
cere;" and paid officers, by that section, *'are toO* 
electod under, and their ^tiea defined by, 
nnder the hands and aeala of tho PoorOaw ComnuHUw 
eis." IMamU, J.— I tinnk it m^ be said tiieie was« 
appointment in some sense. " Appointed by wt p_ 
rtdiioneTs'' may mean, that they reoonmended mm m 
appointment tothe justices; and the fact of their 
tion is not negatived by the ease, thourfi the confinn* 
tionbythePoor-lawCommissionereiBT] Sapp«u>8" 
was regularly appointed, still he did not inj<™" " 
making oat the lists, nor dees it appear that he i^*" 
went m the matter at all. Lastiy. the case '^'^^TZ 
the notice of ol^eotioa was left at the place of 
Geoiga Cooper, ai ftwentj udnntea past eieren em 



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THE JVBI8T. 




■i -mt^At ot U» tfith of Avgtttt. This wu sn fanoffl- 
^nt«rTie»; oU tbe dediioa of the reriniiR burbter 
aB«»1k»tiieoiMlMT«. (Wmltemr. Pitt, Ztntw. 79). 

Mt vpeK the Mtioe tben came to Cooperi 
;i(«b,J^We nuj &iriy aMnae that the 
tfiahoaHimaiMned, and tut eome one took it 
Ifcutaatoitoad the Court to have meant, in 
h» «wqf IFiMB T. Ml to dedde that thenffici«M7 
I^OT^aafa- Jl cfawmwtanw, ia a mwlion of 
btewtieakareaKtlMintioeinapiitiiinde 
«h» JMr;alkBiththaTe bean as pot that theieiraa 

— ■II illitwhaMajthattteaaaetotfaehapaaof 
jaaiiilijiVlaite.] 

^RyUi, SajL, b nfly^Tbe <atl7 aneittai in the 
«^B» %«Mler Uw peraon on whom tne notice was 
■■rMj ni& penoa, not whether the time of 
aniKW iaproper. If the reriamg banteter ie 
'^Idnto bm ftmni that the lerrioe waa msaffi- 
latkktttr nipMtj be has decided in direct op- 
iN to dK icqmnmaite of 6 & 7 Viet. e. 18, s. 101. 
T. the bcti wen totally dUferent from 
-wm iktiia Ukam. Ai to tho poweia of Uie Poor- 
iSmaimma vnt wirtmt oveiseen, under 4 & 
^'^n.^tHki^tt, it !• dear, fram die woidi ofaect. 
*thH Aqr cuaot appoint, thej mar bj their 
mmmmmmt,mjmktiait o TOiaow , ana require another 
tobanattdmhiaitead;^ and it wM bo dedded in 
X.r.Bmt,(]i Adot & £U. 130), that they cmb- 
a«lfcMfmiimniit any of the paid offioera. The 
mm^ J tai.TkJunka of Warwiekatire ie not in- 
MMCoat Kith the mffidency of the aerrice in the 
jgrn A iai tm, faat nther in Ckroar of it No doubt 
» f*^J ^m laiitant orera ec r may be limited by 
wwn faeat; bat, from a genenl appointaient, it 
te nfamd tint hii datiee were without Umita- 
lw» ; m>rf it woiU work a gnat hardship if the parish 

— laldd aat apenon as thdr offieer, and then it 
«ln la Ae Mid, thit acta done by him, snch aa would 
WwttiB Che mpa of the geneial anthoiity nraaUy 
9a^md epoB mefa to officer, are not within the aeope 
a/ib jattnity, becraee it was spedal and not gemraL 
nvappsvCBcat, as found by the case, is the same, in 

aa that tend in T. i^ffT^a. 

CWr. adz. nUt. 
1W jadgmcfi t of the Court* was, on Nov. 17, deli- 
-wiibT 

CoaaiujL, J^In this •ppeal, which was heard l>efore 
sy BmAos Msalc and WilUanu, and myself, in Uie 
aiMe* of tbs Chief Justioe, the question was, whether 
a asticc at ohjaom to the name of one Jolm Attwood 
bMg tttMBtd on the list of Toters for the borough of 
&Bvkh had been duly aerred, porsnant to the stat. 
SllTVaEk.e.I8»al7. The nofiee had been left at 
t hu h w rf abate of Gewge Cooper, at twenty minntea 
jKt dmn fl^doc^ at ni^ on the 20th Annst. The 
amtt^ad tor oar opinion finds that G«OTg» Cooper had 
hm ^poin t ed by the parishionen asnstant oreraecr 
Aeet ^ yean before^ and had ever since oontinued to 
■tia tMcapaei^, disdiarrii^ all the ordinary duties 
enoeen. The caee rarther finds tliat Cooper's 
iMBtmaat had not been confirmed or saneUoned by 
a* Peirlaw CtHnmissiMierB. It doee not, bowerer. 



rto V to be cseential to the validity of an appoint- 
lof m aariatant orerseer, under the 69 Geo. 3, c. 
l^JL r.tbst sodi a{^>ointment should be confirmed by 
ttw IWbw CommiarioneiB. That statute has not 
km Mpesled, and mdntaents mav sttll be made 
■feriC cxc<^ in paMfcea from whtdi the power ia 
kkm svsy, or ratrained bv some wder of the eommia- 
imm; mi the making of aneh umrfiitBmit la ex- 
mtfy iseonieed in the atat. 7 & 6 Viot. o. 101, 1.61. 
ihttUk, thanJbn^ that, on tha ftoto itatad In thla 



^01^J.,HBBl%J.,adWillinBi,J. WIUe,C.Jn 



ease. It must be understood, that Gesne Cooper had 
been qipointed porsnant to the statute 09 Geo. 3, c 1^ 
and as tnere Is no limitation of the duties which he la 
to perfonn, but the appointment is general in its temuL 
be must Im taken to have been wpomted to perform all 
the dutieeof an overaeer, for whtoh the case of SkimgUgf 
Y. Smridg* is an authority. Now, such an officer, as 
wM stated by Lord Denaoan, C. J., in delivering the 
judgment of the Court, in Btg. Wattiy (7 Adot & 
£1L 461), is not the servant of the chwehwardeu and 
oveneevL fant of the restiy, firom wIumb he dlraetlj » 
cdvaa ms authority. The acta done by him are noL 
therefore, to be oonndered as dme by him aa the agOK 
(rf the other overeeaa, but as draw by virtue of his own 
authority, derived from the appointment <rf the VMfcry. 
By the 13th section of the 6 & 7 Vict e. 18, the over- 
seen of every parish are repaired , to make out a eob»- 
dnle of persons entitled to vote, and they an to sign the 
list and publish copies; and the^estionariae^ who are 
the persMis meant br the won '*oTeneers^ in that 
aecUon. Now, by theinteTpretatlonchniae(seetl01)of 
the6&7Vietc. 18, the word "oTeraeerr* **shallex- 
tend to and mean ul peraena who, by virtne of any 
office or appointment uall exeeate the datiee <rf' over- 
ofthepoor.** An assistaat •veneer, tiierefbra, If 
mrpt^ted to peiAiB dl the dntisa of an ovaiaew, hi 
one of tite pennia who are to pccliBCm the duty of making 
out thelist of voten; and in this oaae H was, we thinly 
within the line of Cooper's duty to m^e out the Uil. 
It was held by this Court, in the caae of B tm lm T. 
Bbetittf that it wae soffident to serve the notice of <Ah 
jection, under the 17th section, m any one of the over- 
seen whoee duty it waa to mue out the list, although 
that overseer bad not dgned the fist. We tiiink, tiieia- 
fbn, that, as Cooper was one of the partiee directed by 
the act to make out the list, the fmot of his not having 
actually interfered in making it out is immaterial. The 
list, when made oat, must be oonndered as having been 
made oat by all those dhreeted by the act to make It; 
and a ssrvfoa on any <me of thm ia a eerviea on • 
proper party. It was not insiBted, before ni, that th» 
latMMSs of tlie hoar at which the lervioa waa made 
affacted its validity, eoppoeing then waa no other oIh 
jection to it, nor do we consider that any valid objection 
to the service could be raised on that ground; for the not 
in sect 101, has pointed out what shall be deemed agood 
eervice, vis. that it shall be sufficient if the notice tiaa 
been 1<A at the place of abode of any one of the over- 
seen; so that ir the peiaon served answered, as we hdd 
he doee, the deeeription of the overseer, the serrioe la 
such as the statute leqabrea.— i>sdd0M retentiL 



COURT OF EXCHEQU£R.^HiuKT Tn. 

ViCABS e. HooLi>.~i/afi. 20. 

IFAiPt a Defrndamt tAota to appfy /or a St^putim to 
dtpHwe the Plamt^ of Com undsr Ae Ckmmty Oomt 
^,94-10 Via.e.W,emmotatmiamieltethmrJuiS' 
nmt hat been enter«dy tkt Court wUl grant Me BmUto 

'mmtmtm-a, 



ttt omb a« JmigmmU if antaiad, 

tion &;e. 

Jcjfoe moved for leave to enter a sugvestion to depiw 
the plaintiff of costs under the 129tti section of the 
County Court Act, 9 & 10 Viot 0. 95. This Coort 
had recently decided in Bmith v. Roberta, (ante, p. 40), 
that an i^llcatlonof thia kind cannot be made with- 
out moving te set adde the judgment ; but the preaenfc 
ease having been tried under a writ of trial retumaUa 
on the 18l£ Januarv, the defondont could not aeoertafai 
whetiier jadgmeat nad been signed, and it mi^ even 
have been dgned on the morning of the present appHp 
cation. He theirafon asked for a rale why judgment 
ifemttni up shanU not be ftt mUi^ and a aoggeitkn 
entesed Acw 



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THE JUBIST, 



Thb Coubt granted the rale in that form ; and no 
cause being shewn, it was afterwaids made absolnte. 



CROWN CASES RESERVED. 
COUKT OP CRIMINAL APPEAL.— Hilaet Tnu. 
IBtfm Lord DzmiAM, C. J., Parke^ B., Aldebsov, 

COLTHAN and COLBMDO^ JJ.J 
BbQ. 0. HOUOTAT.— JOR. SO. 

LartM^ — Faht Prtienca — Practice. 

7%u Omrt wpeeU Cam B«uned to he mbmitied to (A« 
Judffcs in a complete Form, and teill ordmarify reftue 
to tend badk a Gate fitr Amatdmeitt, tmder 11 ee 12 
Vict. «. 78, #. 4. 

A.J mj^ejfed in a Tannery^ clandestine removed certain 
Stint of Leather /ran the Warehouse to another Part 
of the Tannery^ for the Purpose of delivering them to 
the Foreman, andmMhtgnatd for them at if thqf had 
been hie own Won:— 'Had, tmU tkit did not amomU 
to Lareenjf. 

To constitute Larceny there mutt be a utrongftd Tahing, 
with Intent wholfy to deprive the Owner of the Do- 
minion of the Property. 

Hie prisoner was indicted at the Lirerpool SessioDs, 
<«a the 4th December, 1848, before Gilbert Henderson, 
£eq., recorder, forstealtog 120 slcios of leather, the pro- 
perty of Thomas Barton and another, tanbers, by whom 
the prisoner among many workmen were employed 
at tluir tamwy to drees skins of leather. Tlie skms, 
when dressed, were delivered to the foreman, and every 
workman was paid In proportion to, and on acconat or, 
the work done oy himself. The skins were afterwards 
stowed in a warehonse adjoining to the workshop. The 
prisoner, by opening a window and removing an iron bar, 
got access clandestmely to the warehoase and carried 
away the skins mentioned in the indictment, and which 
had been dressed by other workmen. The prisoner did 
not remove these skins from the tannery, but they were 
seen and recognised the following dav at the porch or 
place where be nsaiUly worked. In tne workuop. It 
was proved to be a common praeUce at the tannery for 
«ne workman to lend work, that is to say, skins of lea- 
ther dressed by him, to another woikman, and for the 
bcvrower, in sneh case, to deliver the work to the fore- 
jnan and get paid for it on his own aoeoant, and as if it 
were his own work. A qaestion of fiact arose aa to the in- 
tention of the prisoner in taking the skins from the 
warehouse. The jury found that the prisoner did not 
Intend to remove the skins from the tannery and dis- 
pose of them elsewhere ; but that his intention in taking 
them was to deliver them to the foreman, and get paid 
for them as if they were his own work ; and in this 
way he intended the skins to be restored to the posses* 
won of the master. The jury*, under the direction of 
the Conrt, found the prisoner gnilty; the question of 
law being reserved for the consideration of tlie judges, 
- whether, on the finding of the jnrv, the prisoner ought 
to have been convicted of larceny f 

Lotmdety for the Crown. — ( No counsel appeared for the 
prisoner).— £Pari(«, B.— There is the case of JR. r. Webb 
and Another, (1 Moo. C. C. 431).] This case is some- 
what distingnisliable from /Z.v, fVM. The intenUon at 
the time of taking the skins must be taken into conu- 
deration. \_Q>lerid^, J. — In Jt. j. Webb there was 
the interval in passing the property from one heap to 
another; the prisoners also got payment. P(&ke, a. — 
There must be an intention to deprive the owner of the 

Snmerty.j There is no correct definition of larceny, 
'aking Ineri cansly as in the civil law, and taking 
animofnnmdi,areby some authorities consida<ed essen- 
tial in larceny. If UM taking be injurious to tin owner, 
.it is submittttd that that is enough. A more aeenrate 
definittm (tf lamny, peifa^ would b^ the wnngfol 



taking and canyii^ aws;^ of a penonal diattel agi| 
the vml of the owner, with the view of derivii^ s 
nefit from the taking the chattel other than the n 
use thereof. iParke, B. — All the cases go to shew \ 
there must be an intention to take away the pnp 
from the owner.] (Foster's Crown Law, p. 124). | 
derton, B. — Suppose a man were to let out his nissi 
horse on the road, for the purpose next day of findin 
and getting a reward from his master for his sctiril 
recovering it, would that be larceny ?3 Probably t 
but here there was a taktiig of the chattel vrrot^ 
lucri causA. IParJte, B. — There most be an hKeu 
take away the entire dominiwi of it fiom the avnu 
In tlw Minor larceny is thna defined :— ^ Lamm 
prise d'autre moeble corporeUe tTedierousment «mti 
volunt de celuy a que il est, pur male ^igne de la pos 
uon on del use. — " Trecnerousment est dil, por 
que si I'estoignour entende les biens estre siena, et qi 
les poet'bien prender, en tiel case ne se fait myo 
peche." According to Lord Coke, (3 Co. Inst. c. 45 
107), "Larceny, by the common law, is the feloni 
and fraudulent taking and carrying away, by any i 
or woman, of the mere personal gooos of anetl 
neither from the person, nor by night in the hoas 
the owner." It is true, be goes on to add, " it mn* 
felonious, i. e. cum animo furandi.*' '* Actus noo o 
ream, nisi mens sit rea." Serieant Hawkins n 
(1 Hawk. P. C. clO), "A felonious and fran 
lent taking and carrying away by any persoo of i 
mere personal goods of another, not from tne person i 
out of his house, above the value of 12d." Lsrcet 
according to Eyre, C. J., in JPear't ease, (2 East P. 
c. 16, 8. 112), i^ "the n-rongful taking of goods w) 
intent to spoil the owner of them, causS lucri." I 
Edward East's definition is, (East's P. C. c. 16, n.i 
"Perhaps it may, with as much propriety, be defin 
at large to be, the wrongful or frandulent takings, 
carrying away by any person of the mere personal goo 
of another from any place, with a felonious inteDt| 
convert them to his, the taker's, own use, and mal 
them his own property." Mr. Justice BliwIcstoBe | 
Bl. Com. 229) defines lareeny, " the felonious takii 
andcarr^'ing away of tlie personal goods of anot/ier 
In Bracton, it is said, there must be taking smn 
furandi. BUickstone seems to think that ammo f 
randi and lucri cansft were the same. [^Parie, 1 
— To institute larceny, there must be an intentu 
to usurp tlte entire dominion of the thing take^ 
to do what you please with it. It is a question f 
the jury whether a prisoner intended to have the di 
minion over the thing taken, or a temporary use of i 
Tliis point was decided in B. v. FFeW. Alderson, B.- 
Surely, this is a false pretence rather than a larceny, 
If tlie Court should be of opinion that theofTence chai;^ 
is not larceny, probably they would consider it neca 
saiy to send down the case to the recorder for smeno 
ment. [Lord Denman, C. Jw— No, we cannot do thai 
We are very jealous of d«ng that in settlement cm« 
Cases ought to be sent to thb Court in a couplet 
form.] The atat. 11 & 12 Vict. c. 78, s. 4, gives powe 
to this Court to send back cases or certificates for amenii 
ment. 

Lord Dbnhak, C. J.— There must be on intention (i 
deprive the owner of the property to constitute larcen) 
It IS not advisable to draw nice distinctions in cnniin* 
cases. There is no case wliere a part^ who is giU"/ ^ 
not liable to punishment. Heretlie prismier n><g''M|jV 
been indicted for attemptimr to commit a wk» 



meanonr. 




wv..»v. v> larceny » •»>• » .•. , , 

P.C.fi03): yet that definiUon Is defective; it 
to be added that the chattel waa taken without ai^ 
eoburof right Ha^y casei an ooUected in Kv 



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THE JURIST. 



67 





ia vhidi it hu hma that if then was not 
tOBiBrpthe entire dominion, it was not 
U A. T. frM tmd Mtgrit, where there was a 
•111 rf ntidtt for the pnrpose of getUng a higher 
' , the jodges dedded that there was no larceny. 
Hiswdeont to the jary that the prisoner in- 
to Mup the entire dominion of the article, and 
tikt oner of it wholly, there can be no eouTio- 
^Wcny. In this case the prisoner attempted to 
ifisttUHintcnce. 
Ami»s,B.— I eunot distingniah this case irom 

Comus, }.—Vi may be a matter of difficulty to 
I it&iitiixi that would embrace anv conceivable 
It ii better to foQow cases decided ny the Courts 
nnl ^"Ww^ To constitttte luceny there 
Ii 'it kUBt to dapriTe the tme owner of the 
*, Mitkat ii not the ease bare. 

J^ctanmad.— CbmMM ftuiAtct. 

Rn. V. Haxx. 
Imojf—FtUte Pnteacei. 
Snm^ s TaBrnt-dutndUr, elandettwtefy re- 
MMielM^o/ Fal^ O* Propa-Ue of B.^ from an 
Wffa Bmi»B.'i Wartkimaetoa kwir Room in tie 
wmtPlm,miflaetd it im aPmrof Scaka; and 
mfl m m m i i mmu i to B. that a Butcher named D. 
MtM^Afktkkfvehiued and paid fhrivB.: 
-^UIitt*A.m^litfyeem»kledofLarpeiiy. 
Oe /rintr, John Hall, was tried at the last 
(UKtmam Qaaius Steitm for the borongh <^ King- 
0m itjiM flan. Mm T. C. Gnunger, Esq., recorder, 
la an ladktiaeat tbanaag the prisoner with stealing a 
maMtitjr efht mni ttUov, the property of John Atkin. 
ma pn&eattar is a tallow-chandler, and the prisoner 
It As time of the alleged ofenoe was a serrant in his 
aMlsynKBL On the mmming of the 6th December 
IsiL ma pmsecatoT, in consequence of something that 
baa aeeHrBd to excite his suspicions, marked a qnan- 
tilry at hatcher's fiit, wliieb was deposited in a room 
iiBMdatdy alwre the candle-room in his warehouse. 
Jm theltfliernMirawai a pair of scales used in weighing 
tfetAi wUdi UwpnMeeatorhoi^hiforthe pniposesn 
Msttair. At noon the foreman and prisimer kfl tho 
wvAwaaa t« go to dinner, whoi the foreman locked 
fhk Amr and onied the ke^ to the prosecntor. At 
that tiaw tbexi was no hi in the scales. In about ten 
aiimatn the piimtt- came back and asked for the keys, 
vftisfc the pnieentor let him hare. The prosecutor 
watered him into the waiehonse, and saw that he took 
■attsag ta with him. In a short time he returned the 
\aj% to the pnsecotor and went away. The proaecn- 
tar Am wwt into the candle-room, and found that all 
iha kt wUdi he had marked had been remored from 
As apftx noB, and after having been put into a bag 
kidtsaiplBOBduithsBealssitttlwcandle-Toom. The 
ynsesator then went into the street, and waited until a 
■antf As name of Wilson came up, who was shorUy 
Uvwed by the jffisoner. TIm latter, on being asked 
vkOTtfcs At eame from that was in uie scales, said it 
Uagsl to a hntdier of the name oi Robinson ; and 
mbsa, ia the prisoner's presence stated that he had 
tm» to waA the ht which he had brought from Hr. 
B^iaaee. The prosecntor told Wilson that he would 
■stpayJamfortnefatimUl he had seen Hr. Robin- 
isa, Md left the warehouse for that purpose. Wilson 
■Mlfiatcly im Kwa^ and the prisoner, after offering 
tstb |««cieator's wif^ if he were foigiren, to teU all, 
im amtf toow and was not apprehended until some 
■Bs swaaioL at some dbtanee fhnn Hull. The 
kaisd Reorder toU the jory, that if they were satia- 
U A< the primwr iwmored the iSit frnn the uimer 
iMfttiAc eandle-nwin, and jdaeed it in tiw scales 
iriftAilitaBeioBcf adBngUto iiw proMeutor as fat 



belonging to Hr. Robinson, and with the intention of 
appropriaUng the proceeds to his own use, tiie -ofiteoe 
amounted to larceny. The jnty found the priaonw 
^Uty . The prisoner was not sentenced, haTing entered 
into a recofnusanoe, conditioned to appear at the next 
sessions to De holden for the said Ixtzongh of Hull, to 
receire judgment. 

JDeareljft for the prisoner. — The simple question that 
arose at the trial was, whether the j>ri8oner had re- 
mored the article with an intention of appropriating it 
to himself. The verdict was found on the nets, tnat 
the fat was brought to the place where it was found for 
the purpose of getting mone^ from the master. \_Arch- 
Mai — That ia not the findmg of the jury.] In effect 
it was. This is not larceny, but an attempt to commit 
a statutable misdemeanour. There was remoral, but 
no felonious conversion. It is similar to the case of 
Reg. V. Holhwt^, (ride ante, p. 86). [Pon^ B.— 
No. The prisoner took the articles with the intention 
of devesting the master of the property, and of repre- 
senting them as the property of the reador. Coleridge^ 
J, — Ittwhose domimon does he represent them when ne 
comes to sell them 7 Does not he say they are Robin- 
son's^ I grant that he says they were sent by Robiu- 
son. tCoIeridffe, J. — Then they were out of the domi- 
nion of the master. Aldereon, B. — In the other case, 
there was no intention of depriving the master of the 
property. Here the case is different.] It was the in- 
tention of the prisoner to restore the articles to the 
master. [Parle, B.— But there was no intention of 
restoring them as the master's own property, but as the 
property of anotinr.! There must be three things to 
constitute larceny. Bracton, the Mirror, Gtanville, 
all agree in saying that there must be the taking of the 
goo£ of another, taking them unlawfully, and taking 
them for erer. The expressions " pris" in the Mirror 
and ** tractatio*' in Bracton imply a taking for erer. All 
the cases and decisions go to establish that there must 
be a taking of the property of another for the cause of 
lucre, or for some benefit to the taker, and also the in- 
tention of depriving the owner of the goods for erer in 
specie. [Coieridffef J. — You admit a lucri c&aB&l] 
Yes. {Coterid^t — Suppose the case of a man who 
takesa noTse from another man Cor a month, and then 
diqgaises it and brings it back, and sells it again to the 
owner as his own horse, would that be larceny?] No. 
If there was the original intention of bringing hack the 
horse, I should contend that that was not laroeny; and 
this is the same case. {Alderton^'B, — Ye^ only a more 
lively way of putting it. Nevertheless, it looks very 
like horse-stealing.] Bracton (lib. iii, c._32, p. 150) 
defines " larceny" as a taking with an intention of 
wholly depriving the owner of the property ; and Glan- 
ville sars, (lib. x, c. B.), " Furtura est tractatio rei aliens 
ft«udulento animo furandi, inrito illo cujus res ilta 
faerit*.'* In the case of Re* r. Morfit and Anotkery 
(Roas. & Ry. 307), which was a case where servants 
took their masteir com to give to the masters* horses* 
to diminish their own labour, the jndgen^ in holding 
that to be larcoiy, went upon the principle that the 
master had been wholly' deprived of the com, and had 
completely lost it. In the case of Rex r. PhilUp and 
Stnmg, (2 East, P. C. 662), the majority of the judges 
held that there was no larceny, as there was no inten- 
tion in the prisoners to change the property or make it 
their own. In the preeent case, if the jury had found, 
that, if the fraud had not succeeded, the prisoner would 
hare appropriated the fot to his own use, it might hare 
amounted to larceny; but they have not done so. Ue 
remored the goods from one room to another for the 
purpose of a cheat. The question of dominion, it is 



* <' Fortam is eontreotatto fraadnlosa, Inori fadendi gratia, 
vet ipshis rel, vd etian nsns ejus' peasertoais re." (Inst. 
Just, lib. iT,t.l). 



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THB JUBIS'K 



nlnidlfeid,iiBffk uteU. B M i — acontiafflrtfaii 
in tana to »y that tha priBoacr inteaied to itMl th« 

artiob^ wli« it is fomtd that he biong^ them to the 
matter for the pmpoH of obtaining moiwy for them, 
lir. Arebbold, m liia Taloable woric, to vrtiich we 
an iJbo bo mach indebted, (and no one mom fiiUy 
agrees in the expreeoon of high respect for the laam- 
isg and character of Mr. Anhbold, which fell from 
the learned Lord Chief Baron at the last ntting of this 
Courts than mvself ^» sa^ " Laroeny, so &r as re^Mcts 
the intmt witn which it u oonunitted, (and the intent 
hare a matnial ingredieat to the offence), may, per- 
h»M, oorreetly be dimued ihna:— Where a man Imow- 
fauwr takea and guxiia away the goods of another, 
witiiMit any elaim or pretowe <rf nfpat, Intent 
lalfl ^ to dmriTe the ownerof them,and to appropriate 
or aonrert uiem to his own tue.** {AUUnoitt fi.— >Here 
the prisoner does deprive the owner of them.^ No : the 
Talneitf them, the worth of them; but not the things 
thenuelTee. There ia a wide distinction between goods 
and chattels and the value of them. If a man were to 
take away a raluabk diamond ring, and bring it back 
to the owner, for the pnrpose of obtuning a reward bv 
a false representation, that would be no lii^ny. {_Al~ 
denoity B. — According to your argument, it would be no 
larceny if a man were to take away a fire-pound note, 
and bring it back to the owner, and get change for it 
Parte, 6. — This case only differ* from a common lar- 
ceny in this, that there is an nneomoum degree of im- 
pndiuioe superadded.] To oonstitata laneny there 
mnst be, first, an intention to deprive the owner of the 
BToperty; aeoendly, lacri oausft; thirdly, for erer; 
smrthly, of the res ipeas. And it is submitted, that 
theaa intmtiona are not manifest in this case. 

Lord DanuM, C.J.— The taking is admitted; and 
the &eta prove an animus foruidi. If there must be a 
taking with intent to deprive the true owner of the 
property, how oould the prisoner more effiactually de- 
prive him of the property than by aelllng it as the 
property of another] I think the leanud reoordar's 
decision was quite right. 

Pakkb, B. — The owner was deprived of the donjon 
of the property, the stealing hemg accompanied by an 
topndaktnnd. 

AKDiBScm, B<— It waa the prisoner's intentitm to de- 
prive the ownor of the pn^wrty, and get the value of it 
uider a new oontxaot. 

CouKUT and GoLBum^ JJ^ eoneurred. ■QwMdiw 

PREROGATIVE COURT. 

In the Goods of J. ArrsiiMis. — Hov. 7. 

1 Fkt. c. 26, J. 9-~&iffiitaiin~Acknowlmlffm&U. 
A Wmvat prcdmetd Igthe 2«t$atorto 7\oo Ptmtu, 
wkam he tuk$d to tiffn ttynei^ercfwhomdepoteetoitt 
immg tkem eigiked; but there wa* Sndeiice, tfua,on 
HeJ>agn/tht Dateefthe WiUf and before axig WU- 
MiMf' iwaMt Mirv oa Paper j it hore^DeeeateePe 
8ia»ature:—Prebate deereea. 

The deeeased left a will, dated April 27th, 1848, 
whereby he gave all his proper^ to his wife, aod ap- 
pointed her sole eseentrix. The will was written on 
ene aide of a sheet of paper^ in the deceased's own hand- 
miting. It eonohtded with the words, " As witness 
my hand and seal this 27th day of ApriL 1848." It 
was snbseribed, Jonas Attri<^ hu hand and seal,** 
(a seal was affixed opporite to the agnatnre). The 
names "Jamea Child, Charles Holmea, Bowlaad 
fritdiatd Shaw,** ware alaa written <morite to the 
rignatuM^ hot these was no atteatatim emus nor the 
iiwd " rltnwis " An affidavit of dne axeeation 
had been made by the atteetiag witneM, the two 
bat of whom dmeaad ttet the deeeaasd mtm fakto 
a Ur. Chlld*a shop, (a neighlMrar <^ tha dooMaad), 



and nqamted than, Mh Maf MaaeiH, ta ab 

p^er, which be ihtt took from ua poofcat aad^ 
twnire Uwn on tiie ooimter of the abop: that 1 
thai subscribed the same in hia preamoe^ bat Hut 
deceased did not rign hia name m their pr e e an ce, 
etate the nature or character of the paper. Both 
posed, that, bmng surprised and ratho* floxried at 
time, they did not observe whether the aig^tnie 
seal of the deceased were affixed to the p^er whoa 1 
signed their names. They both, however, recoUe 
that the deceased said at the time, *'lia sa|MpoBei 
should not die the sooner from what he hm£ doi 
frtnn which they concluded that the paper they , 
Bwaed waa the deeeaaed'a wflL Th^ botb d^naad i 
Bur. Shaw, the person whoae name appeared in 
charaoter of a third witness, waa not preaent at ; 
time, and that tiiey n^tho: of them knew any pen 
of that name. Hr. Shaw hlmaalf deposed that the i 
ceased was in the habit of ealUng whim onoe a wed| 
business purposes ; that, on one occamon of his doiiij 
about three or four months before his death, he t 
from his pocket a paper, asking him at the same ti 
" if he had any objection to rigning hb will ;** tSut 
replied that "he had not," wfaeteiq>0D he aigited 
name in tiie mannerand form in idiich it nowappei 
that the deceased pot tha p^er in hia pocket, & 
whence he bad takenit,and tliatnathiiq;'fartlmp« 
on the subjeot ; that he is^ however, oartain that I 
deceased did not sign the paper at that time, and th 
to thebertofhisraedleettmBBdhdie^ there warn* 
other names subscribed to the p^wr abova where , 
wrote hu; but that he eonid not day whetherthe agn 
tore of the deeeased himself, or lus seal, were on, t 
paper when he rigned It. 

Sir iToAn Dodeeot A., moved fn probata of t 
vrilL citing^ttrMTM v.iSAeioiIsr, (1 Roberta. 6^ inwhi 
Dr. Loshington (uttihg for Sir fi. JennsEt Fust) h 
prouounoed for a testamentary paper which had thssii 
nature of the deceased, whose wiU it purported to I 
affixed to it, with the names of two witnesses, neith 
of whom, howevoT, oould state with certaintj wheth 
the will was so signed wlun they aabaoruMd tbi 
names to it holding, Uiat, in the abanee (rf the t 
oollaction of witneoaas, the will most be pxefamed i 
have been duly ueouted. 

Sir H. JunuB Fxjst. — ^In the case cited, (me of fJ 
witnesses saw the deceased sobseribe a paper which ] 
said was his wiU. H«e th» doc easod merely asked tl 
witnesses to signap^^r fiwhim. Thedaoeaaeddida 
ugn it in their presMioe, neitliar did it utpear that fa 
sgnature was al&xed thereto at the time they aiwdil 
so that the fiwt of his asking them to rign oooldnot t 
construed into an act of aoknowledgmuit of his rigH 
tore previously made. The witneaaea are to attest tl 
^vatnre'of a teatstor, ^thar made or ackno^adBJ 
in their mesenoa. Hare tha d ssaaia d does nritbar u 
one nor the other. It ie dairhedidaot afgninthd 
preemee; and I han ao enrideaee betee me that tfa 
will was algned at the tiraa flie w itn sases were J 
rign it. I mua^ thnrfore^ reject the motion. If n 
will were propwmded, profaaoly the Covit nsht o 
satisfied that lAe signature was affixed to tha will pM 
vions to the sufaaei^titm of the witaeesea. 

On a Bubseqwttl day— the widow of the d ee o sis 
having made an affidavit, to the elfeet that the deeesMi 
shewM her the Uentioai will in qneatim on the dsy « 
its date, and which she than read, and to which she W 
the deeeased*s signat«re was affixed as it now ^ pia ial 
and that there ware no wit a smea * namee at that tioM 
and, as she thinks, no ssal; and that the deceased Bii< 
that it only wanted wlliiiaihifc wfaldi ha woald n 
done; and dao, that diw^AaUa death hatoUM 
that hlawiU waa aU • — 

and pndmto grantad. 



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THB JURIST. 



COURT OP OHJJH7KRV. 
Tcix f. HoXHAT.— Zl, 22. 
L^ai M to rafraw &^aek of Oovmam U ' 
yei « Pieei tf Ontmd, m tAe C!mlr» ^ a 
m Lmiom, firom B.^ ana cove>uuU§d nottotm 
tf" ocImwk (Am 01 Pleatmv-^rouMd. Th» OrviMd 
hmmendeiflf jmreiatttj'* G.t wko made 





n 



I'dmnaPkamn-pwmd, 
nfa W1B u ippcal from fhe decinon of the Blaiter 
«Cik6 BoUi.(Kp«tod, iBtfl, p. 26). The &cto of the 
■■■BliBi^vim follT stated, as also the argomrata re- 
loabj^te^cfmuH^Beoansel, it ia now only ut- 
t* rii tte radgutot of the Lord Chanedlor. 
mjora, mm heaiiiig Hr. R. Pakuff and 
am(«naiid in nipp<ni of the wder ap- 

C^UKsuoB^I eumot accede to this appfica- 
wiChoat CHtiH 1 (hmbt on what I have tnonght 
maa I han known this Court, namely, 
GentlNiMi^nitT to enforce the perfonnance 
t otoed into between one owner of land, 
_.. iJ&gpiopntj near him, in reference to 
ttwBfniii^ In the ease of 7%e Fw^et 
•t %W r. eOmm, (2 Dow. 301^. in the 

^£«Ahtb«qa(iUoD msed was, whether a cer- 

taiB pItB <n> |«rt a the contract; and the Court of 
3amm a> oat on ^indplea wppUcable to the law 
tiSmidmd asdaanljr, bot geaezaUy . When the ease 
MM* hifai - the Heaw of Loorda, no qneation was railed 
atotbajarwlidiBai^aCoDJtof equity; itnereren- 
iaio the coatemplatiwi of the learned Loards to 
B that ii lay way. That a party may bind 
iovefoaeetetliemodeof lutng his land, isnei 
bat it is snd, thai this Court will not 
iiy as to compd a party pnrchaaing to deal 
telMid aeeordiDg to tin oontntct. Here there ia 
^^aitMB aa to the oai^Eacty for the purchaMr of the 
iMerter-aqnare aalsn iide the foUowiag ooto- 
■■1(3— {fiifllAddiqinadtiiacoT€a«nt.3 Hete^onthe 
«f ftbe iaabunuat, tks owner of faonaet sella laod ad- 
Mirii^ thaaahaasB^ with an txpreas coTsnattt that there 
j^BWanboiUisgMitbatqiaee. It is now contended, 
lAIMBiBa (the party ooTwanting] could violate the 
eartBsL. «r ftat the Court wonld hare any difficalty in 
iHtoiBiag hiB, Wt that he mi^ht sdlj uid that the pep- 
jHtaawBtbelaad is sdld ought violate theeovenant. 
TV ifaeatfia m, iriKthv a IMuty taking property (the 
iHiv bcsog txMBil to use it in a cartun way) may 
wait ia a way diaawtricaUy opposed to the oootraet. 
Im ttis avcat, what weald become of all the cases 
MiK ^ Tke-Chanedlor, and of the case befbte 
ImiWKh'a Tke Pake efJM/ordT. The Tnulmof 
^ JMtf Mmmm, (2 Mr. & K. 662)1 On what 
piali I«d BUwipxoeeamd in that case, we do not 
waBkaow; i%9 Ftegiet tf Hmriata Hotpital t. 
Mi^itH efeu that he bald that the Court woold 
m^eSam wMi the aiiiw of propraty contrary to a eon- 
iBit. Hethm^ eould be more inequitable than that a 
iKtr, taking property at a less price, because fettered, 
W cmbled to £ipoaa of it ss if not fettered. 
SvCsart woold not sanetumstidi aconxseof proceed- 
K bat always aeted on the contrary principle, 
lb kas aothi^ to do mth the qnesdon of covenants 
nmnc with the land. Hne tiieie is no difficulty as 
Ii Ae&rai of the contract, as ficom the exhibi^n of a 
shiL fcf ben it is on Uie feee of the deed, and no 
■atisB arises as to not goiag oat of the deed. Then 
t» piariM ahoBt legal BabilHy. A party who 
ttemh ■sties takes snkjeot to all eqoiUea onaM 

SIhsewMref thapntpartri and it mut ba the cule 
AhCiBttoftotskemiWiU rights thaa attaM. 
Itifatrfthas beia^ la tUa eaas^ each an eqni^ 
ToLXm. e 



attadwd, b dsiv. It k aha clsar that the p«r^ don 
MA-Mtothakba takssarith aotiea. Itseemstoms 
to be the nmpust cass poasiblei fiv, without aaverclnf 
to any question as to oovenants running with the hui£ 
I eoDMaer this pn^wrty to be bound by an equity, and 
that the party takes it with notice of thU equity. I my 
nothiw as to those doctrines aald to be lud down br 
Lord Brougham, in Ktpfd v. BaiUgf, (3 My. & K. 
617), as I have not had an opportunity of consulting 
the case and coBudeiin^ the qoestioa. I can jpve aa 
pinion ^Uiout examimng the ewe ssiona attributed 
to him. I eannot, however, connder that the rale of 
law ia any measare for the admiiustntion of equi^. 
The case of Mann v. StefkmM (see 16 Sim. 377) seeai 
to me precisely in point, so fivaa the Vle»>ChaneeQor'a 
decision went ; and that decidon waa affirmed b^ ma. 
Whether the question r^aed here was or not distmetly 
nussd before me in that cass^ I do not know ; but I sat 
that I expressed no ophiiott upon it. The order ap* 
pealed from is right, and Oa prssent potion mot ba 
refassd, with oosts*. 



VICE-CHANCELLOR OF ENGLAND'S COURT. 
Skakff e, SouLBT.— iVb». 6. 
V^nntwry Settlement — Iwxmoral Cmstd^ration, 
A married Matt, being mdAted at tie TVsM, auign»d 
Two Polieiet on hisLifet on TVuMi Jhrthe Bet%e^o/9 
Woman vitA whom hehadeohabitsdfamdh^C&tlirm: 
^Held, that tie Suma j^oMoUe on. Ae PoHdu wen 
Aattts for Payment of iu I>ebti, A // CO 

By an indenture, dated 7th December, 18i2,'aiM / 
made between John Miller of the one part, aod SUa 
Quitton of the other part, after reciting that the sud 
John Miller and £Uza Quitton had for several yeaa 
past cohabited together, and that Eliza Quitton had 
twme four children durmg suoh eohabitation, and that 
John Miller had determined to disoontimM socb oohft> 
bitation, it was witnessed, that, in eoasidemtiott itf tha 
connexion which had therettrfore existed between tha - 
aud John Miller and Elisa Quitton, Jdm Miller core* 
nanted to pay Eliza Qulttca an annuity of 260?. ; and, 
for the considerations i^rasaid. Miller assigned to EUza 
Qnitton, her executors andadminiatratorB, twopolioeaof 

*The following u coined from tte Aort-band writer's notes 
of Ae Lord Chancellor^i jodgfrnent in Mam v. Stnhena, 13A 
November, 1847, the Isttisr portion, b^imiiw wiu tlie words 
"I think," hCy hBTing abo been oompared with the Lord 
Cbsnodlor'a own notea, which Us Lordship brooght into eooit 
■od read oat dnrit^ the argainent of the ease above reported 

"Tbia is one of those enes in which, mi beiag told that it was 
important to have the order, I sent it in the eari^ part of tha 
neation. I am now only stating tbegroonds on which I made 
that order. Hie order «ddch I sent was, ' Lot the iajonothm 
be varied, by omitting the words " and whioh shall be orna- 
mental rather than otherwise to the sorroonding properly," 
and let the order for the oommitment be diidia^ed, aod Isl 
the motion stand OTer, irith Ubertj fertte plaintiff to bring SB 
action of covenant.' 

** I tidnk the ii^onetion waa ^operly granted, dlhon^ Xba 
letter words, ' and wfaidi shall be ornamental rstber than otfaer- 
wlse to the sorroonding property,' o»ght to have been omitted 
as too indefinite { aod the i^jonctloo, being in the words of tiia 
ooveoant, cannot interfere witii any r^bts of the defoadant. 
Bat I do not think the eridenee of broefa of this injsnetion 
soflkienttojastUytbecanuDitineBtof the party. Thereistoo 
modi doubt as to tlie WMxia^ ni the word < d^ ' to ssppMt 
so severe an order; there is no evidence that any pert or tiw 
shrubbery bad obtained the name of the word ' dell^* and if 
the words of the covenant mean the lower part,' the eridenes 
as to its locality is not satisfoctory ; and there Is not any snf- 
fldent evidence of any baUding inconnstent with the tenns of 
the iigmietion after it waa pronoonoed. I think, therefore^ 
ttte i^pmctiQp ibonld atand, omittfaig the above words, aod the 
order of oommknaeat iBecfaitrged, and the plaintiff most be at 
Hbssty to bring aa setka en tbe < 



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THE JURIST. 



aasurance, effected in 1832 and 1841 respectively, on tbe 
life of the said Miller, and all snma nf io™«y i» hcK.vutv 
payable by virtue thereof, upon the trusts thereinafter 
declared ; and Miller covenanted to pay the premiums 
on the policies. And it waa declared that the monies 
to be received by virtue of the policies should be in- 
vested in the names of such persona as Miller should 
nominate, in trust to pay the dividends to Eliza Quit- 
ton Ibr Uw, with mnalnaer for the bmefit of the fonr 
ehildxsn. Miller died in 1846. The plaintifia filed 
their original bill, as creditors of Miller^a estate, against 
his execnto^^ who, ifaeir answera, alleged that the 
estate of Miller was insufficient. Tlie plaintiffs then 
filed a supplemental bill against the executors, Eliza 
Quitton, and the children, stating that they had re- 
cently discovered the circumstances relating to the 
policies and assignment, and cliaiging, that, at the time 
the said assignment was executed. Miller was in insol- 
vent and embarraased circumstances, or indebted to 
divers persona, and that the testator never parted with 
the policies, or gave notice to the assurance societies of 
the assignment; that the eums payable under the 
policies amounted to 5250/.; that the alleged indenture 
was fraudulent and void; iod that the monies payable 
on the policies ought to be applied in payment of Mil- 
ler's debts. Eliza Quitton, by her answer, denied that 
the plaintiff^ was indebted at the time he executed 
the assignment, and alleged, that he had given her the 
policies, but that after his death she liad given them 
back to the solicitors of his execntors. Both parties 
entered into evidence ; the result of which appeared to 
be, that Miller was a married man; that he owed 200/. 
to one of the plaintiffs and about 30/, to another plain- 
tiff at the time when he executed the assignment. The 
defisndante' witnesses said, that Miller was supposed to 
have been a man of good property at the time. 

Stmartf J. Parier, and younger for the plaintiffs. 

Btthell and SoiUhgate^ for the defendants, contended, 
on the evidence, that there was no proof of insolvency. 
Independently of that, this is a peculiar case; the 
money only arises from an insurance effected for the 
express purpose of benefiting this lady and her chil- 
dren. The statute of Elizabeth against fraudulent set- 
tlements was meant to apply to property, which, but 
fox the settlement, woula nave been available to the 
Creditors ; here the property only arises by means of 
the settlement. Here he covenants to pay the pre- 
miums; had he covenanted to pay the woman an an- 
nuity, that would have been good, (Gray v. Maahia3y 
5 Vea. 280); and this is the same thing. Unless you 
can prove that this settlement was made mal& fide, and 
with a knowledge that Miller was insolvent, it will be 
good; and there is no proof of anything of the kind. 
iTowiulmd V. Windkam, 2 Ves. I ; Belt, Snpplt. 209). 
A single debt will not do. {Kidnqf v. OmmahTf 
12 Vea. 156; Oidogan v. Smnett, Cowp. 435; Luth 
T. WilUnson, 6 Ves. 384; Toumsend v. WesUtcoU, 2 
Beav. 3i0 ; WhiUington v. Jmninga, 6 Sim. 403 ; Itid^- 
ardtm v. iSmaUtoooal Jae. 562). 

Stuart, in reply. 

The Vicb-Chakcelmb, a few days afterwards, gave 
his judgment, to the following effect : — The only reason 
why he had reserved his judgment in this case was, 
that he might ascertain the truth of a representation as 
to certain statements in the bill ; and it appeared to 
him that there was quite enough to reveal more than 
was necessary. It was stated, tiiat the party was em- 
harrassed and Insolvent ; bat that was superfioons, it 
being enough to prove uie fad that he was indebted. 
It appeared to his Honor, paying attention to the hm- 
gaage of Lord Hardwicke and Sir Thomas Flumer, 
iRKhardson v. SmtUlwood^ Sac, 667), that there was no 
doubt in this case ; and the only observation be had to 
make about it was, that it was rather a worse case for 
the nnfortnnate woman tiuui he had supposed ; bcuuse 



in that very vAlnm* (Q Voic. lou^ stood the o| 
rnett v. Parrot^ in which Lord Hardwicke lefoi 
countenance the provision made for a woman w)i 
lived with a married mau^ in contradistinction | 
case of a woman living with a single man, consil 
it not as a premium pudicitic Hia opinion was^; 
in this case, there must be a decree, with a declaii 
that the settlement was void as against crediton: 
money to be brought hito court, and to be assets ij 
hands of the execaton for payment of the testri 
debts. ^ 

Chifchise V, SiMFsov. — Jan. 19. | 
Bequett — iSubstittaionary — Separate Uk. 
A Testator, hy hit Will, gave to hia Sitter, J. C 
married Woman, 1000/. /or her or for her CkiUr 
sole Use, Benefit, and Behoof y for ever; and in 
his Executors to pay the tame to her at soon as pn 
cable. By a Goaidl, reeUu^ thai he wat detirtn 
mating further Bequettt m reUsHon to hit m 
J. C, and her Family, he detired hit Exeain 
invett a Sum ^ lOOOZ., upon certain Trusts, far 
Benefit of J.C. and her Children. J', C. aurtivti. 
Testator:— Held, upon a Bill filed hy J. C. and 
Husband against their Children and the ExeaOor. 
the Will, that J. C. was absolutely entitled to the lOi. 
I'tgaty given hy the Will; and that it was not givti 
her separate Use. 

The will of George Best, of Newark, New Jersi 
in the United Stat^ of America, after the gift of j 
his real and personal property to his execntors, up 
certain trusts therein mentioned, contained the folio 
ing clause: — '*! give and bequeath unto my sist 
Jane Chipchase, 1000/. Bank sterling currency, for ii 
or for her children's sole use, benefit, and behoof, 1 
ever. I desire my executors to pay the same to h 
as soon as practicable. Fourthly, I nve and beqnea 
unto Mrs. Hannah Thompson, of &c., 1000^ Bai 
sterling currency, for her, or, in case of her decesi 
for her children's sole use and benefit for evn; and 
desire my said executors to pay the same as soon 
possible." The testator made a codicil to his sud wh 
which, so far as is necessary to state, was in tbefoUov 
ing words:— "I, George Best, of &c., having du 
made and executed my last will and testament, beam 
date the 27th January, 1842, and having subseqnentl 
considered the contents thereof, do hereby fully confir 
and ratify the same, and all matters, bequesta, u 
things therein contained ; but, being desirous of mas, 
further bequests in relation to my tuter, Jane G^P^, 
and her family, have thought proper, and berebjr a 
declare and mike this mv codicil to said will, to i 
taken and received as an additionid part thereof. Fire 
in addition to the bequest made in my said will to in 
dear rister, Jane Chipchase, I request my executora i 
said will named, or the sorvivor of them, in their ow: 
name, to purchase a farm in the United States of Amc 
rica. or in Canada, for a sum not exceeding 600f. 
sterling currency, and to allow my brother^m-j^" 
John 'Chipchase, the hnsband of my said water, J«i 
Chipchase, and his fiunily, to use and occupy the sanw 
rent free, so long as he shall live ; but the use Inereo 
not to be subject to his disposal, or in any manner «» 
ject to his debts; and, after his decease, t^*"* 
to become solely the property of my said ir 
Chipchase, and her cbildnn, ibr ever. Secondly « 
order to enable the said John Chipchase to V^P^i 
stock and manage the aaid &nn, I give and beque&ui 
nnto him the sum of 4001. Bank sterling 
to be paid to him for hU sole use and benefit »' 
ever; or. in case of his death, to be paid to my » 
sister, Jane Chipchase; or, in case of her death, then j 
he paid to her children, share and share alike, louu 
ly, I desire the ezecnton in my sud will named w 



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91 



nm tOOfML Buk sterling cnmncy in 
fends, is aid vill described as s sepwate and 
'met Aui^ nd to annually every year thereafter 
Ute intotst or diiideods arising or received there- 
~ to b; said uster, Jane Chipchase, towu^ lier 
art, sad enabling her the better to support, clothe^ 
edoate ber ctuldren; and I desire that she may 
kaEBU lo Kttiie snch interest or dividends ari^ng 
<Wi irfiiiiii fansr ber life, or until her youngest child 
tlsm ^Tio^AallaniTe at twenty -one years of age, at 
wliidi penod boL mentioned her said children shall 
W catitkd to leceiTe the said fund of 1000/., to be 
4a:vSdedsBa|tban, share and share alike, forever." 
*T1ua ^ «ai filed by John Cfaipchase and bis wife 
■w aoisiL tlH executors (tf the will, and against 
diildra,eUtiunff to bare the first sum of 1000/., 
bythtviUipudto plaintifi^ ud to bare the 
1 MM (f lOOOL, given by the codicil, inrested 
seeand,mDori\ag to the trusts thereby declared. 
jBMI aad HtSm, for plaintifis.— This is an abso- 
yft of 1000/. to Jane Chipchase by the will ; the 
TMitiuL "or" is citariy disjunctive, and only meant, 
tkal,mcaMtf tbedeatb of JaneChipdiase in the lifetime 
of iks tcatitar, ber children were to take by substitu- 
tioB. IV pftbf the codicil is clearly for the benefit 
of the chililnBii veil as the parent; it cannot, there- 
W JsirtiMiHuiy for the gift in the will ; indeed, 
the e&ii^ tbt it is to be in addition to the 
btgattt k the wUL We, therefore, claim both be- 
fnb; tie A^m obsolately, the second to be in- 
mtad, aeeerdiBg to the tnists of the eodiral. 

PmrktT and Oiffard, for the trustees of the 
will, nbaiCted whether the suit was properly con- 
ttiMxd, U bctn; by hoaband and wife, when it was 
iitieiMWs wiMber the first gift of 1000/. was not to 
Oc smnte »e of the wif«. 

Rem aad B. Palmer, for the children of Jane Chip- 
^askbon in the lifetime of the testator. — It is by no 
f s setSled, that where there is a gift, as here, for the 
beoe&t ti a parent or her children, the gifi to the 
duUna is to be read as substitutionary in case of the 
pajsBt ^utS in the lifetime of the testator. Montagu 
■w.Kmaam (1 Russ. 165) was decided on the particular 
nd, dots not apply where there is any inten- 
iDMk aa the part of the testator that the children are 
tataAfae an iatmst in any event. Now, here the tee- 
tatoc, in the cnfinl, speaks of there being in the will a 
snWrtiy gift &r the benefit of Jane Chipchase and 
htr Amify; and he expresses his desire to make a /ur- 
«Ur heqwest for the benefit of her and her family : by 
'fmUm;" be evidently meant, in addition to, and in 
the OM moBer as by, the previous gift. And then he 
ve^vocaily gira the second sum of 1000/. for the 
boanrfJsne Chipchase and her children. We sub- 
■i^ thatjaado' these circumstances, the proper con- 
jtraetiB of the words *' for her or for her ctiildren's 
sab sa^ beae£t, and behoof, for ever,** coupled with the 
patey wOTds of the codicil, require the particle " or" 
himii ''and;" this wovdd make the whole clear 
mi tmaKttot ; and, further, would Mt rid of another 
^IgMtisa wUdi might be taken to the will, namely, 
OntH TSB void for uncertainty. 

i f sli s ^ for duldren of Jane Chipchase bom after 
tlsdaAsf the testator.— If the plaintiA* construetion 
la i%lt, there was nothing given by the will which 
■si^st me date of the codicil, a subsisting provision for 
Ac faatly of Jane Chipchase; but the l^cy given by 
As codicil is expressly stated to be g^ven for the same 
e^ect as that given by the will. It is absolutely ne- 
OHty, therefom, to read *'or" "and." (NewmaH v. 
Sidtiiftli, 1 Cox, 341 ). 
VicE^ujKEbLOB. — To asslst in the construction of 
Asdmio the will, I refor to the following gLR in 
tk»iaU>-**In order to enable the said John Chip- 
4iMto inpariy atock and mtnage the sidd §um, I 



give and bequeath nnto him the sum of 400/., to be 
paid to him ibr hia sole use and benefit for ever; or, 
in case of his death, to be paid to my said sister, Jane 
Chipchase ; or, in case of her death, then to he pud to 
her children, share and share alike." 1 mention this to 
shew that the testator had a clear notion of the original 
meaning of the word " or " as savouring of subttitu$ion, 
and that he knew how to use it. Then, what is its 
meaning in this bequest in the will ? It appears to me, 
that the testator bemg aware that hla uster, Jane Chip- 
chase was in an adult state, as the wife of a person 
named, he has put an end to any question, for he say^ 
** I desire mr executors to pay the same to her as soon 
as practicable." His meaning was, if she should sur- 
vive him, she was to be pud it as soon as practicable; 
if not, then it was to go to her children. Declare, that 
the mother was absolutely entitled to the first sum of 
1000/., and that it was not given to her to her sepazate 



use. 



Smith v. Pincombb. — Jan. 25. 



Delajf — Notice — Examination of Wttnates. 
Motion to tvppreu D^xnitions, on th« Chvund that Notice 
of the Noma of tic tVitneuet hadnot6eenffive»toti« 
Plaintiff, but Plamtif*t Soiieitor nmm aware cf their 
being examined, ana the Notice of Motion wu mt 
given for Twenty Degft ^fter Publication had pamd, 
Refiued. 

Whether it w neeeuory Jw a D^andeMt to give the 
Plaintiff Notice of the Namet of hit Witneemf 

This was a motion that the depositions of the de« 
fendant Thomas Pincombe, taken on behalf of the de- 
fendant William Pincombe, might be suppressed, on the 

Fxiund that the order for the examination of Thomas 
incombe was not served on the plaintiff, her solicitor 
or agent, and that the depositions of the several wit- 
nesses examined in these causes on behalf of William 
Pincombe mi^ht be suppressed, on the ground that no 
notice was given, by or on behalf of William Pin- 
combe, to the plaintift^ her solicitor or agent, of the 
names, ranks, or occupations, ages, or places of abode 
of the aevmu witnesaes. The commisnon for tiie ex- 
amination of witnesses was issued on the 8th June, and 
the mtneases were examined on the 7th, 8tb, and tth 
August. Publication passed on the 4tii Norember, and 
the notice of motion was given on the 24th November 
ftv the 2nd December. The plaintiff did not join in 
the commisnon, but she assented to the appointment of 
some of the commissioners. From affidavits, filed on 
behalf of the plaintiff, it appeared that the solicitor of 
the plaintiff was seen in the inn where the examination 
was taking place, and that he knew what was going on. 

Bethell and H^. H, TerreUt in support of the motion. 
— Notice ought to be given to the opposite psrty, (Dan. 
Ciian. Pmc. 880 ; Mulvany v. DiUon, 1 Ball & B. 413; 
Ellit V. DeanOf 3 Moll. 48), in order that the oppoute 
party may be able to prepare croes-interrogatbriei. 
And as to the co-defonduit, th% order ought to have 
been served. ( Dan. Chan. Prae. 863). 

JtoU and Ivllett opposed.— Aecorain^ to the pre- 
sent practice, the order for examination of co-de- 
fendant does not require notice ; the book of forms in 
the office has been altered by striking out the words 
** and of this, notice is to be given forthwith," and in- 
serting iostmd, *' saving just exceptions." Besides, 
after the delay that has tiken place between the time 
of puhlicaUon and the notice of motion, the Court ought 
not to interfere and deprive the plaintiff (tf all his evi- 
dence, merely for an irregularity. 
fV. H, Terrell, in reply. 

VicB-CuANCBLu>K.— It appears to me, without en- 
tering further into the question, that the drenmitanoea 
of the caae forlud me nom granting this motioi, bo- 
cftnas, ae I nndentand It, tu eonnti7 solicitor, who 



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•eems really the tolicitoT for the pluDtiff, ioBamuch aa 
Ac Ixadoa solicitor acts merely under hU initraetUHis, 
actwlly attmded «t the time of the examuataim. and 
■ot only saw the witnenea, hot eonvened with utem ; 
■Bd H appeal^ the examiaation haTiiig terminated <m 
Ifae 9th Avs^oat, tlwt puUicataon paned on the 4th 
Korember ; but it is not until the 24th that any notice 
ifl given, but then notice was given for the 2nd Decem- 
ber. My o|»nton Ib, after such a long delay, it would 
he qnite wrong for the Court to interfere here. Pnblica- 
iion has paued, and the parties have had opportunities 
ascertaining the weight of the evidence, and it is not 
till twenty days afterwards Uut they attempt to rectiily 
the error. M v opinion u, ^t ^is appUcatuoi must be 
^amiaaed, with corta. 



TICE-CHANCELLOR KNIGHT BRUCE*S COURT. 

H'Intosh «. The Great Western Railway Cohpakt. 

—Dec. 12 and 14. 
Contract bdteem Company and Contractors — Duty of En- 
gineer of Company to Comtraetorg. 
A Contrail eontraeted to do certain Worts for a Rail' 
way Company, and the Price wu to be paid on the 
Engineer of the Company eertifying the due Perform- 
anee of the fVori. The Worke were completed, but 
^e Engineer refiued his Cert^tate at the alleged In- 
tUcation of the Compat^. l%e Contractor filed hit 
^ly charging Oollunon beltpeen the Company and the 
Bngineerj prt^futg Diieotery, Rdief, and Pegfmmt 
tuaintt tk* Cmpaiijr; mud aeating Ditcoitery from their 
A^meeramd their Seeretarjr. AUthe JkfendamttdO' 
murredj but the Demurreri were overruled. 
The bill in this cause was filed by Mr. David M'Int<^ 
and Hr. Timothy Tyrreil, as executors of the late Mr. 
Hugh M'Intosh, an engineer, against the Great Western 
Bauway Compuiy, Mr. Charles Alexander Saunders, 
ikor secretary, and Mr. I. K. Brunei, their en^neer ; 
and it alleged, that the testator of the plaintifiFs, in 
1830, con^cted to perform certain works, of three 
idles liMig, between Ealing and Hendon, upon certain 
conditions, and to be perfonned within a certain time, 
for Uie sum of 27,0607. The deed of contract was exe- 
cided by the Company, under their common seal, and 
hy Mr. M'Intosh under aea], and was dated Nov. £, 
1836, and recited Uiat Mr. M'Intoah bad eontimeted 
niUi the Company^ to execute these worka *' to the aa- 
tiAction of the aud Company, and their ^nclpal en- 
gineer, BppfHDted or thereafter t« be appointed by the 
ndd ComiMmy and that the Company had agreed to 
idvaaoe him money on account of works done and exe- 
cuted, "such execution to be certified by the said 
Iiamberd K. Brunei, or the principal engineer for the 
time being of tlie sud Company ; and after comple- 
tion the remainder was to be paid. It was w-itnessed, 
among other things, that M'Intosh should perform the 
works with such materials as in tbe specification men- 
tioned, and in the most workmanlike manner, to the 
saUsfaction, in all things of the said Company, and 
their principal or anwtuit reildent engineera, then al- 
nady appointed or thereafter to be appointed, and in 
all lespera to aUde by the true intmt and meaning of 
th« ipecificfttion and uie indenture. It was provided, 
that, in case of variation in the works, the contractor 
■hould perform them agreeably to the former stipula- 
tieas; and it was also, provided, that the word en- 
gineer,** used in the specification^ should be taken to 
Bean such principal engineer or asnstant reudent en- 
gineer, unless such construction should be inconsistent 
with the context of the specification. And it was pro- 
vided, that, if the contractor should be materially im- 
poded or delated in the works by the Company or their 
anvta, such unpedlment or delay should not vacate the 
-OMd, «xe^ that ia any toch ease the •n^eu' should 



4eteimine what extendon of tinw and alWwaneeel 
pense should be made and giTea. And lJu deedfui 
(among other thmes) witneeaedy tiiat the Compaq 
Tenanted to pay Vit. M<Iiito«h S7,90OC, at certain 
eified timea. And it was proTided, that tfaewoiksi 
teaeted to be done should not be deemed or eoBsid 
as executed, unless the same ahoald haTe been e»e 
within the time specified for that porpoee b^ tbe u 
tnre,iiotheeBUsmctionof the princiF«l engmeo-fix 
time hdng, and shonld have been certified by hii 
have been so executed; and tbat, <m notice bei^^ 
by Mr. M'Intosh for that purpose^ the said pnod 
engineer or assistant reodent engineer for uw t 
being should, without delay* examine tbe works, i 
if executed according to eontracty certaly the mmt 
the Company; and thereupon Mr. M*Intod i,Mi e 
cutota, administratorB, or assignB, ahonU be entitfd 
recover fimn the Coinan j the amoont ontified t^ 
due tu the works. The bill alleged that the m 
w«w duly completed, and notSee given by Mr. M'Intd 
and that fifiOOl. and upwards were doe to fain, (beat 
a certain sum of ZOOM, retained aa noxeaentiqg otl 
wwks), which sum was agreed to ; and tha<^ thmc 
it was the duty of the engineer to give his certifici 
which be had not given, on tbe gronnd that he \ 
been desired by the Company not to do so till I 
M'Intosh had completed another contract; that, in 
fusing to certify, Mr. Brunei had been actbi; naderl 
authority and bv the direction of the Compel', a 
that in so doing ne was acting in coUnaon w tai a i 
by the direction of the Company. The MB pi^ed 
declaration, that the wiUiludding the certificate w 
fraud upon the phuntifia, that an account might 
taken of what was doe to the plaintifi in temet^ t 
works, and that paymmt might be decreed, and f 
other purposes. The Company, their aeeretay, « 
Mr. Brunei, separately, dem^irred to the bilJ. 

Beihtll, Bacon, and T. Stevens, for the demoner - 
the Company, aind of Mr. Saunders, their ""^J'^'J 
contended tbat it was not tbe fact, as assnmed by d 
bill, tbat the chief engineer of the Company owed ac 
duty whatever to Mr. M*Into8b, but that he ™"™ 
the servant of the Comfwmy ; and, as Mr. M'hrto* « 
thought proper to enter into the contract, subject tott 
supervision of the chief engineei*, that officer, wai 
ther it was Mr. Brunei or askj other gentleman, wi 
in a sense, a dictator over him. The equi^ of tt 
bill rested on two grounds: first, on the 
taking sudi complicated aceonntsL hut that was imb 
ficient; and, seoondly, that the plaintiflii, by ww™* 
the want of the certificate of Mr. Bruncl^re unable 1 1 
procure payment ; uid the refueal of Mr- Brand «■ 
caused by the order, the wnmg-doing of the Comwuiy 
and that was equally groundleas as an objection, K»r« 
law the wrongful act of a party bound by 
do a certain thing, as to pay monei^, relieved tbeyy' 
who complained mmi provii^ his willingaes to P^™™ 
his part, and gave him a right to recover ; and 
medy was at law, to which theplaintifftought to rawt 

for redress, f They cited Holham T. 7»e EaM ^*"*»i*!r 
pany, (1 T. B. 638); Jfor^n v. BirnB, (» ^^^l' 
AmbroM v. Dunmoto Union, (9 Beav. 508); 
Bromlm^Union, (2 PhiL 640); and Saagt^ 
Great WeOem SaOwm Company, (13 Sho. M8). 

Roh and G. L. RmeO, for the demurrer rf » 
Brunei, argued, that the phintiffs had no 
make htm a deftndant, as an officer of tbe ^Vf^ 
under the cireumRtanceB of this case. "^^^^ 
asked relief nor even cost^ agfunst him, *™*i"^xlj 
oovery. The cases in which a witness ^^^~*J^w 
party were but two, and formed the only "^^Pt^^ 
the rule, that a witness could not be *_f??frt 
m a suit. These were, first, where «"T*""**?r^ 
sued, there their officer might be made a party W 
cawajf a eorporatien annming mdcr leeli 



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vmi^, ipito might be made deftodantg where they 
Akv* vam themedTee op irith the transactions com- 
^Hmeda^fortheptLrpoee of aeldag costs aguiut them. 
^a11tt|nBi9tciM,oiilvthe first wss important; and 
AavmnvvMikWlMUier Mr.Bmnel, as an officer 
«f tteCouMny.wM iNmndto auwer the bill t And 
VBBiJti Mncibk bom the authorities was enough 
"OA^it WH not {Antm.^ 1 Vem. 117 ; Steioard 
7W Sal laJis Gmpmw, % Vem. 880; Wvek r. 
JWeii. S P.V.3N; J«Mdb% r. MtrUm, 1 Bro. Chan. 

Aios T. Oyfti^ 7 Ves. 287; Vin. Abr. 

AriStinyr4, AukO, XAyd; and Hetherittgtmy 

sffMirittf the biH, were not called on. 
SMnBatci,T.C.— The bill in this case may, as 
^■Aaiiu Uit pUinlin and the Great Western Railway 
C<Mpsiiy, be unntalf represented thus : — A trades- 
mmm mi a (■toswr maisct together by deed, that the 
.Aor wfll oMrte for Ihs ktter works <tf oonsiderable 
MmMftadsnd eskst^in eouidfntion of being paid 
Ifcm & atrtoDur SGoor^og to th^ just vatne; 
ttsntae, mem, or the amonnt, to be decided by a 
ttM'poM.iftofied in the deed, each third person, 
n. sMiM tiiSu iat execntion of the work, certi- 

; r fttffad ml the sinoant of payment to be made, 

a n» tadwo ■ Mt, without that certificate, or other- 

>- 1 wise emhrmaijf to tin certificate, to be entitled to 
tar: nsnm s^tisy. lender this contract, the works are 
r A ^Mtemtrnt fy the tradesman duly and properly, to the 
I «. Amw in^ aad ntii&etion of the costoraer and the 
Mi I ^ AM pnoB' The tradesman applying afterwards for 
' jj^Mraf ■ nAaed for want of the certificate from the 
ttari JtcBBO* bring in the cnstomer's employment, 
'^'J mi iaUitMai amofar in deerearing the amount of 
■/ I^BttiEtr, withholda and rehues the certificate, not 
/ mfy wkbtmt jost esoie, bat by direetion also of the 
' entass, and mereorer, as is alleged, by coUnsioo. 
Thm masteto of things which, in my opinion, entitles 
As ilntMb to file a bill agiunst the customer for 
flB»— least, for some relief. The customer's case is 
Oat rf tbm Company, as I Tiew it. The relief pray- 
ed Igr 4e bin, whether exceeding or not exceeding, 
10 mda^ng ss I oonceire, the relief to which the 
llaotiflh, if the tall is true, are entitied, the demarrer 
«l ft aCe fsnr is, in my opinion, unsustainable. It 
g ped for the Company, that, according to 
H*^E">C*« the deed, and re^d being had to the 
Aate flOeied bfX'Intosh, tt is clear, that the refusal 
w ^ tfcinf pom, nsBulr, Mr. Bruneil, of the certi- 
ioCB la^wtsi^ was s breach corenant tm the part of 
ttcGon^y, far which H'Intosh wm entitled to re- 
Asaapa at Isw from the Company. This may 
F"»W^bt«; but it does not, in mv judgmenL defeat 
Aaplntrs right to relief in this court, founded 
tfm the contract I have mentioned. He is justified 
a oAmag to be drircD to that course. Again, it has 
bsH^peed that the Acts stated demonstrate that the 
CBHfnrbas, by its contract, precluded the plaintiffs, 
•* »», firom recoToring the Talue of Uie work, un- 
Ism AsT can prore s certificate obUined {torn Mr. Bru- 
idL nis myj« ti<m ntay or may not be well foanded. 
Hms ii s Wflriamsn, whsterer may be the effect which 
it law, to be attributed to the conduct of the 
Gb^s^, wboM title to sue hi equity, ngiren, as I 
OBcem, by the abseooe of the oertifieate horn Mr. 
fikwl, that beiiigsoooearioned as the bill allies It to 
is set so diq>liioed. It haa been contended uat the 
, imeifil sMjinecr is mentioned in the deed merely as 
ttsigiat or the Company or as their serrant, not as a 
' MnoB wIm eould owe any duty to the contractor ; that 
■sand ae dsty to the contractor, and that a ease of 
<^Ha isBst wall established. It appevs to me that 
llr B wU, as the bidder of the office of principal 
^pMif tho Coapany, anst be treated aa hanng 
W^tiil to oMtOM finBtioiiii, if not atrioUy 



9& 



those of an arbitrator, at least analogous to thoee of aa 
arbitrator, between the contractor and the Company, 
and in respect to which a duty to both arose — a duty, 
the performance of which could not, by collusion be- 
tween the engineeraud theComiunr,beinterceptedwith> 
out creating aoase of fraud cognisaUe by thu Court; ud 
that snch case of fraud is with sufficient eert^t^ and 
distinctness stated in the bill, not merely because it uses 
the word " collusion," but, in addition to the passage in 
which that expression runs, there is found upon the 
cord the other allegations and charges which it con- 
tains. With r«fara to Mr. Saunders, it was scarcely 
argued that his &murrer must not, as I think that it 
must, stand or fall with that of the Company. For 
Mr. Brunei, it was, howerer, strenaously anued that 
his demurrer was sustainable, whether that of the Com- 
pany was good or bad; and upon that subject nuipy 
appoeite cases were cited, with all or most of which we 
are well acquainted in this court Among them I wish 
to mention one of the oldest, because it appears not to 
hsTo been exactly understood upon late oGoanotta whan 
it has been referred to— I mean the ease of Sttward 
7%e Ecut India Compamji^ It appeals it cannot bo 
found in its regular place In the R^4>tnur*sbook, with 
this excepti(m, that a note of the argument and judg^ 
ment is found in tlie court-book of the day, of which X 
hare obtained a copy from tiie Rwtstrar's office, dated 
Wednesday. Julv 10th, 1708. From that it appear^ 
aHer a numoer or couumI bad been heard, the Court 
says, ** Allow the demurrer." Lord Eldon appears to 
have thought, although it is difficult to explain it in the 
book, that the demurrer must be overruled ; but it says 
rerv plainly, " Allow the demurrer ; and as to the plea, 
let it stand for an answer, with liberty to accept and 
save the benefit of the plea until the heating.'* I hav* 
mentioned that, not because, in my judgment, it beara 
at all importantly on this case, but BecMSe I thought 
the information might be acceptable to the Bar. I must 
say, that, upon the whole bUI, Mr. Brunei and Mr. 
Sanndere, against neither of whom do I understand tar 
relief to be pray<Sd, appear to me to be, with equal fi^ 
ness and with perfect propriety, made parties to it for 
the purpose of tliat discovery which cannot be obtained 
on oath from the Company. The consequence is, that 
I overrula each of tha three demurrers. 

Boil «. Falkkeb. — Dte. 19. 
SalkUor't Uen—Attigimmt o/Ikbt. 
A JMt ^ to am Attomof Jbr Coiti mm^t b* mt^nei^ 
and, if U it auifftud, tSt AtmgnM mu^ £e tntUled fa 
dormant Lim fw that DtU at oh additional SheuH^, 
By the Master's report in this ease, and from the 
statements at the Bar, it appeared, that, hy an Inden- 
ture, dated 25th May, 1843, Benjamin Martindale, soli- 
citor, assigned to Messrs. Martin, Stone, & Martin, 
bttokers, ^1 that the debt, whatever mieht be the 
amount thereof then due from Mary Hannah and Mary 
Rebecca F^kner to the said Benjamin Martindale, for 
costs in a certun suit of Falkner v. Maitheun, stated to 
amount to 6002., or thereabouts. That the suit of 
Falkner v. Mattkewi was for the redemption of tlu 
hereditaments, the subject-mattor of the present suit; 
and that, by an order in that suit, dated S6th ApriL 
1843, it was dlreoted, that, on payment of 10/. 16«. UC 
to F. F. Findon and two otiier defaidanls to that suU| 
F. F. Findon and all other proper parties should con- 
vey the same hereditaments to the pluntifb, free from 
the m(»tgage-debt and charges in the pleadings in that 
suit mentioned, and should cause satisntction to be en- 
tered up on a certain judgment, and should deliver up 
the title-deeds and other documents relating to the sua 
hereditaments. That, in an action for oosts in the suit 
against the two Falkuers, Benjamin Martindale ob« 
talnad a Totdiot for and cotta. That in Jnaa^ . 



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THE JURIST. 



1843, Messrs. Martin, Stone, & Martin, at the request 
of Mr. Martindale, their solicitor in the suit, attended 
at the office of Messrs. Coverdale & Co., the solicitors 
of F. F. Findon and the two other defendants, whose 
taxed costs were payahlo as hefore mentioned, and there 
paid to Messrs. Coverdale & Co. 10/. 16«. Id. and the 
taxed costs, making altogether 19/. ]4<. Oi.; and there- 
upon they leceirea the title-deeds from Messrs. Cover- 
due & Co., in the presence of and with the approbation 
ofMr.MartindaIe,npon an ngreeinent and understanding 
previously come to, that Messrs. Martin, Stone, & Mar- 
tin dould have the same lien on the title-deeds for the 
19/. 14t. Od., and for the plaintiff's costs in the said 
suit, as Mr. Martindale then had. That, in Hilary 
Term, 1846, final judgment was entered up in the action 
for 853/., and was registered. That Messrs. Martin, 
Stone, & Martin claimed, by virtue of alt these pro- 
ceedings, to have a valid and subusting lien upon the 
title-deeds for the 19/. 14f. 9d., and 634/:, with interest; 
and alao to have a charge or incumbrance upon the 
faereditamenta for the r^stered judgment-debt of 853/. 
■nd interest; but the Master fbund, that the said 
Heasn. Martin, Stone, & Martin had not any Uea on 
the nii title^eeda, not being a charge or incumbrance 
ctn the said hereditaments. To this report those parties 
took exceptions. 

Saaruton and T. Steimtt for the exceptions, relied on 
Sichardi v. Platel^ (Cr, & Ph. 79), where it waa held 
by the Lord Cliancellor, that the fien of a solicitor on 
the papers of his client for the amount of his bill was 
equivalent to a contract, and, therefore, that a solicitor 
would not be ordered to deliver up such papers until he 
was actually paid ; and the Lord Chancellor remarked, 
that he could not see how there could be any sound 
distinction, on this point, between the case of a solicitor 
claiming a Hen on the papers triT his elient, and the case 
of any other creditor who held a security for his debt ; 
and that liens, which existed hy the custom of trade 
or the practice of a profession, were equivalent to con- 
tracts; and he knew of no distinction inthe law of liens 
between that of a solicitor and that of any other party. 

Bacon and C. M. Soupell, for the plaintiff in the suit, 
cited Baker v. ffenderaon, (4 Sim. 27), in which the 
plaintiff was trustee for sale, and the decree directed the 
estates to be sold, and the title-deeds, which were in the 
possession of the plaintiff's solicitor for the purposes of 
the suit, to be deported. The solicitor, who claimed a 
lien upon them for his costs of the suit, refused to pro- 
duce them, but the Court compelled him to deposit 
tbem, as directed by the decree. [He also cited Mid- 
dkim r. Hill, (1 M. & S. 240).j 
' Glam and Modiedl appeared for other parties, 
' KxiOHT Bbdcb, v. C. — If the law allows the asugn- 
ment of debts, a debt due to an attorney for costs may 
he assigned ; and if it is assigned, the assignee may he 
entitled, in some measure, to the dormant lien for that 
debt as a conditional security. For that purpose, it is 
not very important whether the deeds are in the hands 
of the original creditor, or of the assignee of the cre- 
ditor. Now I cannot agree tliat Messrs. Martin, Stone, 
& Martin, the bankers, have not a lien which is not a 
charge or incumbrance — that is, a dormant Hen— merely 
because it was a debt due to an attorney, for which he 
had (if he had) a lien on the deeds. Then comes the 
question whether he had tliat Hent And it is a ques- 
tion of some difficulty ; but I am not prepared to say, 
that, if, in the traiuBction at Mr. Coverdale's office, 
it was competent to Mr. Martindale to acquire poe- 
Ms^n <rf the deeds, the mere cireumstanoe that he 
was present, as well aa the banker's clerk, and they 
were passed to the banker's clerk with his approba- 
tion, he being present, without touching the deeds, 
womd create a uen. It may, possibly, m a question 
of Mme difficulty, whether Martindale could acquire a 
41<ii upon the desds at alL That is « totally dlatinot 



point; upon that, I rather think there should 1m 
investigation. Whether Martindale had the powe 
receiving the deeds, may be a question of some imp 
ance. The prudent course is, not to allow or oven 
the exception, but refer it to the Master to review 
report. 

- CASES IN BANKRUPTCY. 
Ex parte Newtov, m fw Newton. — Dee, 4. 
S^^w to Flat toh Creditor^ Aw^iue. 
A Solicitor was petUiming Creditor, and sole Oreiilc 
Aitignee, and Solicitor to a Fiat, which was issued 
1832. TheBanlrupt petitioned Sixteen YeanaA 
vxtrda for a re-audit of Aecounttt in whiA Bilb 
Cotte had been allowdy and the same toas ordered. 
This was the petition of the bankrupt, praying a 
audit of accounts, principally relating to tlie allowai 
of the bills of costs of Mr. Moss, the solicitor to the fi 
who had acted as sole assignee also from the date of t 
fiat in 1832, to the appointment of official assignee 
1843, and who was also the petitiouinf; creditor. T 
petition stated that assets had been realised sufficient 

Eay 20s. in the pound, of which 10«. in the pound^ In 
een already paid to the creditors, and the remaind 
was ready to be applied in the same way ; and that i 
the other creditors had ureed to accept payment 
their debts in full ; but the respondent regoired to I 
paid interest, and accordhigly a sum equal to 4/.pe 
cent, on his debts had been provided. 

Swanston and Tripp supported the petition, saying; 
tliat it was out of all question for a gentleman to set v 
such multifarious capacities, as petitioning credito: 
sole assignee, and solicitor to the fiat ; and, therefore, th 
allowance of the accounts, in which appeared iienucon 
sisting of bills of costs, was equally impossible to remau 
without review and re-audit. 

Bacon and fK«Jrf«r admitted, that, as a general tni 
salutary rule, such a case required the re-audit of thi 
accounts; but the present case was one of such pecabai 
circumstance^ tliat the Court would permit the ac- 
counts to stand. The respondent did not aeek to take 
on himself the burthen and responsibility of aangiiM, 
but, on the contrary, it was forced upon nim agunsttaii 
will, the commlssioDera of that day deemhig the ap 
pointment inevitable, there being at that time no cre- 
ditor who could be called upon to act but the respond- 
ent. After a period of sixteen years, tlie Court wonw 
not require a re-audit, the more especially as it was not 
denied that the present most satinactorv result of we 
accounts under tne bankruptcy was solely attributable 
to the most excellent management of the responaent m 
his twofold character of solicitor and asdgnee; and tliat 
fact waa attested by the affidavit of the official aangne« 
appointed so long after the bankruptcy aa 1849. 
Knight BaucB, V. C— The petitioner*B meritsoa »» 




so incongruous as those of solicitor to a fiat and sole 
ditors' assignee under that fiat. I am of opinion tn» 
the bills must be reviewed; and the commismna 
must take into the account the double ponticm « |^ 
respondent The petition must stand over to await tn« 
conunisuoner's certificate. 

VICE-CHANCELLOR WIGRAM'S COURT. 
Shith v. Palmer.— 2>ec. 23 and Jan. 12. 
Otmtlructiom of WUl—Lfffal Representatiee or Btfit- 

sentativet—Next ofKin—ExeaOort, 
The Testator ^ his Will gave his Beat and Perion^ 
Estate to IVusteeSy won Thut to pay (Ae » 
Wi^f^Ufk^m^aJ^ *«• l>«eMs 10 



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THE JUEIST. 



05 



mpp^ a» Ptoceedt tcpoa TntsU wUck dedared 
«K a» fiUmtu^ WorJ$:~-**And the Moaw (Amee 
mriaiBg ^mU mmd do pay^ Hatr^uU, and divide^ and I 
4* Aemf give and beqtuatA tie tamtt in manner fol- 
im^mjh tUat i> to wy, one-tkird Part or Share thereof 
mmtmmgCMuiHj.S.^ if ke ^alt be then Itvinct ^ if he 
wkmit he titm dead^ urnto kie Ugal Reprrtmt^ive or Re- 
fre m mtatittt, ifwutre than one, S^are and Share alHe." 
ne mtier Two~tAirdi were given to Two other Onuint 
ef lie Tatator rexpeetiv^, in the tame Terms. J. S. 
irnW cA« TVafolor, and died m the Lifetime of the 
Wii»m:~HeU^ that tie One-third of the Proceeds of 
Ae Eatate fieen to J. S. pasted to hit Next of A't», ac- 
turiuij I* tie Statute of DittribiUunUt living at the 
JimammefJ.S. 

WUttuB Findlay, by hU wtU, after bequeathing cer- 
tiA ^arifir and pceaDiary Iq^iea, gare all his real 
awl fsfiBiiil estate to tnutees, upon tmst to inTest 
tM» paaoaaX estate and pay the dividends arisioff from 
•Dck iBTectment, and the rents and profits of His real 
est a te , to hts wife for life, who was to pay thereout an 
uvnij to the testator's servant. The will then pro- 
cuAaAaafoUowe: — "And from and after the decease of 
nyaU wife, then apon further trust, tliat they, the said 
J.PaUanaad J.Inois," fthelmstees) "or the survivor 
of tkem, w kk kdn, sfaaJl and do sell and dispose of ray 
and real estale, by public sale, at and for the best price 
wmd moft money that can be reasonably had or got for 
the mxte, sabject nevertheless and charged with the 
ami annttT, nid shall and do convey the said premises 
to the pmcbaser or purchasers thereof, and receive and 
pve Rceqtts for the purchase-money. And my will is, 
tkatawh porchaser or parchasets shall not be after- 
wwds answerable or accountable for the application or 
■hMpplii atlon of such porchase-money, but that the ' 
Mcu^ or receipts of my said trustees, or the survivor 
oCtken, or bis heirs, shall be a good and sufficient dis- 
to sttdi purchaser or purchasers for so much as 
ikalTbe expressed in sncli receipt or receipts. And the 
Mary fnem thence arising, and also the money at in- 
tawttf •bail and do pay, distribute, and divide, and I do 
Aocfrjgive and bequeath the same in manner following, 
ttat is to aay, <»e>uiird part or share thereof unto my 
mna Jaws SCndian, if he shall be then living, bnt if 
WAa& bathsn dead, unto his legal reprewntative or re- 
jtmmittSnn, if more than one, share and share dike ; 

eAa thM part or share thereof nnto my eoudn 
WttBam Shaaka, if he shaU be then living, bat if lie 
aftafl be tbea deai^ unto his l^pil representative or re- 
pfiBuiCatiiui, if more tban one, share and share alike ; 
ad tkc maaining third part or share thereof unto my 
coMBChulcB Smith, if he shall be then living, but if 
beAall he tfaeo dead, nnto his legal representative or re- 
rnBalaliiij, if more than one, share and share alike. 
And I Ww b y nominate and appoint my said wife sole 
gwafa is of this my will." Thetestatordiedlearinghis 
viisw ad his three consins, James Strachan, William 
S^mb, md Charles Smith, surviving. James Straclian 
md WUGam Shanlu afterwards died in the lifetime of 
tt« widow, Cbariea Smith alone snrviving her. The 
Wi i Uu B was as to who were the parties entitled to the 
aana ei the re^doary eetate given to the testator*! 
rrwiwiM, James Strachan and William Shanks, who 
had yicdeeeaaed the widow. The qaestions were, first, 
vhethcr such shares belonged to the respective execu- 
ien ei the l^ateea, or to ueir next of kin ; secondly, 
if t« the next of kin, whether to the next of kin ac- 
eerdiag to the Statute of Distributions, or to the next of 
kia by conaangninity ; and, thirdly, whether to the 
Mxt offciB Uvii^ at the deatha of the Icfateea req>ect- 
n^^or to thoae Unng at tha death of the tcatator's 

ne SaHeAor-GeKeral, 2>mHimon, Wattert, BUmdell, 
^•Ml^a, ssd £lder(im appeared for the different parties. 
Mia ring eaaet were 



(6 Sim. 148); Cotton v. Cotton^ (2Btav. G7)\ Longr, 
Jilaciall, (3 Ves. jun. 48ft); Holhway v. lioUowaf^ (3 
Ves. 401 ) ; DriAje v. Ahbott^ (3 Bro. C. C. 224 ) ; Walter 
v. Afarguis of Camden^ (12 Jur. ti3i ; S. C, 17 Law 
Joum., N. 8., 488); ^atnef v. Ottey, ( 1 My. & K. 465); 
Ej/re V. ifaridcn, (2 Keen, 554); Crowdcr v. Stone, (3 
RU88.217); Taylor v.Beverlev, {I Coll im); Nicholson 
Y. mison, (14 Sim. 549); 'Oorbyn v. French, (4 Ves. 
418); Tidu>eliv.Atiel,(aUa<i3.iOS); Philips v. Garth, 
(3Bro. C.C.64); Richardson v. Richardson^ (14 Sim. 
526); Booth v. Vickars, (I Coll. 6); Bennett v. Aferrt- 
man, (6 Beav. 360); McGregor v. McGregor, (2 Colt. 
198); Hawet v. ^awef, (2 Keen, 646); Merrsem v. Col- 
UU, (8 Beav. 386). 

Sir James Wioram, V. C, said, that, at the close of 
the aignment, he had stated it to be his opinion that 
the words legal representative or represcntaUvca,'* in 
die will, meant next of kin, and not executors or ad- 
ministrators. He was also of opinion that tliose words 
meant next of kin according to the Statute of Dietii- 
liutions. The words in Elmsl^ v. Youn<f (2 My. Hi 
K. 82, 780) were " next of kin," and not '* legal repre* 
sentatire," ns in the case before him ; but Booth r. 
Vickars, (1 Coll. 11), Walker y. Lord Camden, (12 Jur. 
932 ; 17 Law Joum., N. S., 488), and the cases collected 
in 2 Jarman on Wills, 39, were all binding authorities in 
&vour of the construction adopted. The only difficulty 
in the case, therefore, arose upon the third question, 
namely, whether the gift was to the next of kin living 
at the respective deiUlu of James Strachan uid Wil- 
lUtm Shanks, or to tlieir next of kin living at the deaUi 
of the widow. To explain the grounds of his jadgraent 
upon that question, and confining, for that purpose, the 
observations to the bequest to James Stracnan, he 
would Boppose, in the first place, tliat the gift had been 
to James Strachan simpHctter, without the addition 
of the words if then living," and without any nft by 
way of substitution, — would James Strachan, ui that 
case, have taken a vested or a contingent interest! The 
whole estate, in the case supposed, would have been 
diapcwed of by way of present gift, with simple words of 
remainder; the interest of James Strachan being post- 
poned, as is commonly said, for the convenience of the 
estate. Then, would such a gift be rendered contingent 
by the nae of tlie words " if then livinff," referrii^ to 
the death of the widow, coupled with the terms tilt th« 
gift, namely, the terms expressed by the words "pay, 
distribute, and divide T' He thought not; bnt that 
the interest would be vested in Strachan at the death 
of the testator. The word **then" would be satisfied 
by referrii^ it to the time when Strachan was to be- 
come interested in possession, without supjioeing that 
the vesting was intended to be postponed. And where 
the gift was made the subject of successive limitations 
to one for life with remainders over, it was immaterial 
whether the future gift was expressed by mere words 
of remainder, or in a direction to " pay, distribute, and 
divide." The view of the Court upon such cases had 
been explained in Leeming v. Sierratty (2 flare, 17); 
PooMoM T. Qregoiy^ (4 Hare, 398; S. C, 9 Jur. 17A). 
The case of BaUford v. KdMi (3 Ves. jun. 363) was 
sometimes cited, as shewing that a future gift expreaaed 
in the words ** pay, divide, and distribute," or in similar 
terms of eift, was contingent by force of those expres- 
sions. Upon examination, however, it would bo found 
that the Lord Chancellor, in his judgment, proceeded 
upon this, namely, that the future gift of the capital of 
the stock was a distinct and separate gift fi'om the pre- 
vloua bequest of the dividends; or, in other words, that 
the case should be treated witli reference to the gift of 
the capital precisely in the same way as if there had 
been no previous gift of the dividends. That view suf- 
ficiently distinguished that case from tlie common case 
of successive limitations of the same subject-matter of 
gift to one person for lift, and afterwards over to others. 



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THE JURIST. 



whether such gift over vas in words simitar to those 
used in the wul before him, or in anr other temiB. 
The case of Fawdrty v. Oeddea, (1 R. & M. 203), 
though sometimes dted as o^>i>oaed to the obserratioiu 
iriwh had been made, was dutingriished by its circnm- 
stances from the case nnder consideration. Blr. Jar- 
man's observations npon that case, in his Treatise on 
Wills, (vol. 1, p. 744), were worthy of attention, and to 
the effect, that the consequence, in fact, of holding that 
a gift of that description was a contingent ^ift, would 
be to render the terms of the clause of substitution in- 
accurate throughout. If, however, words of present 
gift were necessary in order to malce the future gift 
vested, he must observe that in the will then before 
him such words did occar. The testator, after the di- 
rection to pay, distribute, and divide the proceeds of the 
estate, had gone on to say, *' And I hereby give and be- 
queath the same in mamier following." Stopping short 
<n the sabaUtutionary gift, no doubt the mi would be 
Tested. Noi^ if the Bnutitatiouary gift had been aim- 
ply a gift to B.J in case Strachan were dead, at the de- 
cease of the widow, it was admitted that the interest of 
B> would be contingent during the joint lives of Strachan 
and the widow ; but if Strachan had died in the lifetime 
of the widow, the interest of 6. would then have become 
Tested. In like manner, if, instead of supposing the 
snbetituted legatee B. to be a single individual, the gift 
in substitution had been to several legatees as tenants 
in common, those legatees would, for the same reason, 
have taken a vested interest on the death of Strachan 
in the lifetime of the widow. It had, however, been 
amtedf that in a case of a gift to a class the nde was 
ouawise, and that the Court would read the gift to a 
elass, where the |^ft was subsUtutiooary, as a emitingent 
nft to such of the class as were living at the time of 
distribution, namely, the death of the widow. That 
aach a rule of construction, arbitrary in some sense, was 
not required b^ the words of the will, could not, he 
thought, be demed; but still the rule, if it existed, must 
be followed. The subject had been noticed by Mr. 
Jannan in his Treatise on Wills, ( vol. 2, p. 105), where 
the construction contended for as to the class was said 
to be hardly reconcilable with the principles of analo- 
gous cases, and was characterised as peculiar to clauses 
of sobstitntion in favour of children. The only cases 
there referred to were Ejfre v. Martdm (2 Keen, 560) 
and Orowdtr v. StoiUy (3 Ruas. 217); in the former of 
which the eondunon of the Court was justiSed by 
wwds of reference eont^ned in the gift to tne children, 
to the anterior gift to the parents; and in Uie latter <^ 
which the judgment proceeded upon what the Court 
orairidered the true construction of the words of the 
will. He had also been referred to the cases of Bennett 
T. Jfsrrvmon, (6 Beav. 360), Booth v. Vkhars, (1 Coll. 
6), and McGregor v. M*6regor, (2 Coll. 198). Those, 
however, were all cases of children substituted for their 
parents, to which special case Mr. Jsrman considered 
the rule to be confined. Ue could not think that, in 
either of those cases, the learned judges by whom they 
were decided had intended to recognise any such ab- 
stract rule as that contended for, as applicable in all 
eases of wills. On Uie contiwy, tlieir j ndnnent turned 
entirely on the spedal wording of the wills which were 
before them. ITiion the whole, he was of opmion that 
ke diottld be ^ving an arbitrary construction to the 
words of the will if ne did not hold that the legacies to 
the testator's cousins rested upon the death of the tes- 
tator. The decree, therefore, would be, that the por- 
tions of the residue given to Strachan and Shanks re- 
Ipectively belonged to their respective next of kin, ac- 
eording to the Statute <tf Distnbutbui^ lii^og at weir 
leqwctive deaths.. 



COURT OF QUEEN'S B£KCH. 
SITTINGS IN BANC AFTER TRINITY TEW 

Dos d. Gbobob Earl of Egbbuont v. Luion 
Jufy 12, 1848. 

A.t Tenant /or Life, under a Poieer of leatmgt a 
in 1761, granUd a Lease to the 2>efendaiU t» 
Jn 1844, after the Death of A.^ and be/ore Stat. 
Vict. c. 112, 6., the Revereioner, brought JSfedm 
the Oround Aat the Lease was not tsarranted ■ 
Pou)er. It ameared, that, ^ a Marriage Stttk 
in 1708, a Term of 1000 Year* was created i 
Pr<q?ertjf in quettion far certain Purpofee, osd tl 
attend the InAeritance; and that^in anjndentwti 
let March, 1757, the Indenture erwOtng As Ten 
recited, thenee^ (Hgeels <^ the Trust wereM 
to he $atUfisA,and the Executor of the surviving 71 
of the Term was repaired to assign it, to ottm 
Inheritane$:~-Held, first, that the Surrender i 
Term wai net to be presumed; and that O. em 
recover on a Demise t» his own Name. 

Secondly, that Defendant was not estopped from 
up Term, as he did not there^ deiyr the i 
Title of the Letter of the Plaintiff, but insiited 
the prior legal Title of a Trustee of a Term t 
for the PreteetiMoftke Estate t^UwLmsor 
Plaint^- 

At the Trialt upon the Xon-produetion <f tie M 
ereatingthe Term, and the InaentwereeitmgliatlM 
after Notice topndweythe Z^^endant^ferOe Pmpt 
of giouig eeeondary Evidence <^ tkiue Dttit, mB 
twon the Solicitor of a Person uulo had pt'^oiei 
Eechange tome Pn^ter^ with 6^ hut toliol Ascto 
had not been auried into effeett to produce an Abdn 
of the Deeds; he taidlhathe hadnot received Inttn 
tiont frcm his Client not to produce tt, and that it » 
reads to do to. if the Judge thought that he osgU 
produce it. :n» Judge thot^ that there wat M ti^^ 
eientreatonwI^heMftddHet: — Meld, right. 
Ejectment for a messuage and premises at WUlito 
in the parish of St. Decuman's, in the county of Soon 
set. On the trial, before Wightmon, J., at the Some 
setshire Summer Assizes in 1844, it appesied thi 
George O'Brien, Earl of F^mont, uncle to the im 
of the plaintiff, by indenture of lutse, dated the » 
March, 1826, under a power of leasing contained m B 
will of Charies Earl of B^mont, his father, dstsd tl 
31st July, 1781, for the conaidorations f""*" "* 
tioned, Mittiaad the premises in questi<m to the de» 
ant for the term of ninety-nine years, detenranable i 
three lives, at the yearly rent of at. 6d.,&c Tbethr 
lives were still continuing. The action was bronght c 
the ground that the power of leasing was not w«l<* 
cnted, and the particulars of the objections given mat 
a judge's order were— That the ancient and accwtoBJ 
rent wasnot reserved; that the premises were not bwwJ 
leased in the above lease ; and that the lease omiUed U 
covenant to perform snit and service at the lord b MOI 
and other usual and reasonable covenants (spwiSw ' 
the particulars of objections). At the close of O 
plaintiff's case, the defendant's counsel, in P"'™^^! 
a notice to produce given to the lessor of the piamw 
called for a deed dated Jaw, 1708, being tiie m"™? 
aettiement of Sir WUliam Wyndham, father of Ch«K 
Eari of Egremont, whereby a term of 1000 ye«» *• 
created for raising a jointure for Lady Wyndham, 
12,0002. for yoanger children, by sale or mort(fSge « 
certain manors and lands, including J"?™'*?-, 
question, and to attend the inheritance ; and also a a» 
dated the 1st March, 1757, in whidi Uis e»w*^2LS 
the term of 1000 years was recognised. It ^P*"!* 
that the deeds were in the possession of a moi'w'T 
and the olerk of hU Bolksitor, who attended with t^" 
court, in obedienee to a aabpADa dooes tecgn>» "||^ 
to produce them, in punuaoe of UutmotioM nmi» 



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THK JURIST. 



97 




the wrtgagee and his principal. Thereupon the 
(t&d Mr. Bower, the BoUdtor of a party 
c«atnctc<l witii Lord Egremont for an ex- 
of laib; who stated that during the negotia- 
'lic■^ «n ibabtct ef the Earl of Enemont's title 
been ddirered to him in the mmftl wa,y to peruse 
Sfr^rran, ud it TcniuiKd in his poeKflBioD, the 
jmdt Ht harbg heat jet eonipletod. Thia ab- 
1 -wm tafcnd u Mondary endcnoe of the eon- 
t£ lit tedi in qimtkm. Mr. Bower eud that 
' BO hutnutiou from his client aa to the 
af the ahttracL and that he would do as 
^Rctcd him. He wd his client ^aa equita- 
ad daimed to be entitied to the beneSt of 
e u w tri ei af exch&i^; and ultimately he refused to 
imat tk ahtract nnlcn Ha judge directed him to 
a». T%r eooBsel for the \moT of the plaintiff oh- 
ted, ibde abstract coiutituted the title-deeds of 
witw^'i tBettf and, therefore, onght not to be pro- 
Tie levned jodgt tben^t that BIr. Bower 
to pvdvce it, iai it ma aceordinsly nven in 

St. B ^ip^ared from the abstract that the mar- 

i^B.M*^»ert created a term of 1000 years, which 
hk trastecs, ia taut, amongst other things 
iv HfiOBi portions for ymmnr Miildren. There 
-nn tww yvBBKT diOdrea of tnia marrfaffe, Percy 
Offtte Ari « Tfaoraond and f3izabeth Wyndhain. 
Mai St WBfinn Vyndham, by his will, dated the 29th 
Jbirfi, I8M^ aj^KMDted 10,000/. to his daughter, and 

te Ins soa Percy O'Brien. The deed of the 1st 

1757, waa nuide between George GrenTille, 
_ Elizabeth his wife, danchter of Sir William 

'WjiidKf*', Bart^ fthen deceased), of the first part, 
f^cr Wywibam O'Brien Earl of lliomond, her bro- 
ftaz/of the second part, and Charles Earl of Egremont 
^fl ^ ftfw l port, being a release to the trustees of Mr. 
^ Hn. GieariQe's marria^settlement of 10,0002., 
I^rfte add llfcOOW. appointed to Mrs. Grenville by 
fa Uff, Sr Wwxm Wyndham, onder a power of 
' lo^ Tida deed fMmtwned a direction ^at the 

ga dmuiiafa ator of the BOTTiTtiHF trvstee of the 

Asdd assicu tbe aaane as the said Charles Earl of 
riunra af^tnt. Mr. Bower proved that he 

the deeds m question with the abstract in the 

wnlwqr; aad also, tnat it had been agreed, on the 
tmtj im b client, that the term of 1000 years 
ibDM be aai j^ to a trustee for the purchaser, and 
toMtadAtiahaiiRnce. It was further objected that 
& ddSndi^ who had been let into possession by 
Qsngt O^fieD, Eaii of Egremont, could not set up the 
Ibb yiM the lovor of the plaintiff, who claimed 
'■da wme setdexnent. The warned judge admitted 
fteendaee,aiid directed aTerdiet fiwthe lessor of the 
^iiitil^ nerring ieavv to the defendant to more to 
abra wait or a Terdict for the defendant. In the 
MnWMkhaefaBaa Tenn, (Nor.«), 
HmSit Sojl^ obtained a rale nin accordingly, 
MvAcd. I%€jBari of Berkd^y t. The AnMMop of 
iM, 9 &«t, 86, 90, 96), or for a new trial, on the 
tnodtbat tbe leaae af 18S6 was inralid. The jodg- 
wat of the Coort nndera it unnecessary to report the 
afm^ <n the latter poinL And on the blowing 

ffisiliir t^T^*~*^ * rale nia for a new trial, on the 
giMd sf the improper adaaiasion of aeoondary eridenoe 
rfttstmt tem. 

b Miibailiiias Term** 1846, the mles wm argued 

ftsakaliff rimti thraTT«lTrrt"TTi"']'-"pT--fyrr'ri"r-1 
' aee. It waa tlM dvty of Hk solicitor, who had 
lEiiaaUiitlinaiafmai hinrHmtj tn rnfnim tn prn 



'>n.»,bebnX>ord 



, C. J.,inUaM, Ctderidge, 



dnoe it. [ Wiffhtnatiy — His client had no title to tin 
property to which the abstract related. I thought tha^ 
as his client did not object, he oagfat to prodnoe it.J 
Connsel hare a right to be heard upon such an o^ection. 
(Itezv. lfW^,lM.&Rob.a90,3ei). [LordiJlensMaL 
C. J. — There I allowed the rieht upon the authority of 
a case in which it was said Hoiroyd, had allowed It.] 
If a deed with an insnfficient stamp b ofieied in eri* 
deuce, the counsel for the opporite party have a right 
to object to ita hetng siren in eridenoe, though an un- 
stamped instrument is not Inralid in Hseir.J [They 
cited MantOK r. jDomuv, (1 Adol. & Ell. 31); 2>isijei 
T. Waten, (9 Mee. & W. 608); 2h>e d. The Earl ^ 
EffrmoiU r. 2>af«, (3 Q„ B. Bee. 009). [Lord Denwum, 
C. J. — Counsel ma^ be heara upon the point if the 
psrty to the suit is interested in objecting to it.] Th« 
lessor of the pluatiff had such an interest m this mattes 
as entitles bim to call upon the Court to review the 
deciuon of the judge at Misi Prius, and if the evidence 
was wrongly admitted, it is ground for a new trial or a 
noDBuit. (ihe d. Pet€r r. WatHnSy (3 Bing. N. C. 421; 
4 Scott, lfi6). A party has a right to prepare for tha 
trial, relyiiw on tne artifidal rules which have been 
framed nr the purposes of administering justice, and 
presuming that the judge will decide accordingly. The 
plaintiff may have had a surrender tlie term, which 
it would hare been expenrire to prove, and he rai^ 
have abstained from preparing the proof of it, because 
he relied on a rule which would prevent the term from 
being given in evidence ag^nst him ; or the party who 
possessed the deed which would prove tbe existence of 
the term may have told him that he would not pro* 
dnce it. Secondly, the tmn does not destroy the right 
of action. The defendant was estopped from setting op , 
the term against the remaioder-man, by whom be was 
let into possession. Charles Earl of £^remont, in his 
will, assumed to deal with all the property mentioned 
in it as owner in fee; carving oat of it a variety at 
estates, and making George O'Brien, Earl of Egremont, 
tenant for life. The lease made by him does not refer 
to the leasing power; but it was not void in its incep- 
tion, and was good during the life of the tenant for life. 
Tlie plaintiff cannot contend that the lease was not 
made according to the leasing power, or that the Earl of 
Egremont, in 1761, had no right to grant in fee, because 
he is estopped from denying the title of the party who let 
him into posBession. (Sarwiet d. Majfor of RiA- 
mond V. Thompton^ 7 T. R. 488; Due d. Oiimief r. 
WhUroe^ 1 Dowl. & Ry. N. P. C. 1; S. C, 2 Harr. Dig. 
" Landlord and Tenant," 3695 ; Bkie v. /brter, 8 T. B. 
^). The lessor of the plaintiff, Geor^ Earl of Egre- 
mont, would have been estopped, by his aeceptanoe of 
the life estate under the will of Charies Earl of Egr»> 
mont, from denying the title of the testator, and there- 
fore the defendant, tits tenant, is estopped. (Com. Dig. 
"Estoppel," (D.), referring to 1 Roll. 868, 1. 47; S. P., 
10 Vin. Abr. ^ Estoppel," (L.), with adnbitatur). The 
lessee of tenant for life is entitled to emblements; 
(Co. Litt.65.e.); therefore this Mtoppel is mutual. (Co. 
Litt. 362. a. b. ; 2 Smith's Lead. Cas. 468). The remun- 
der-man is not to be put to proof of his title by a tenant 
let into possession by tenant for life. The setting up 
the term is a denial of the le^l estate iA Charles E«T 
of Egremont, the testator. ( Walton v. yVaierhonts, t 
Wms. Saund.418, n. I). As soon as the tenant for lift 
socceeded, it was the dat^ of the tenant to quit with^ 
out any demand of possession. 

BM and Kimffbite, Seijt., contra.— [Xord Dm m mi. 
C. J.— We do not feel oureelves pvessM with the first 
objection. Two things are necessary to make the ob- 
jection aviulable : firs^ the objection must be properly 
taken. Here tbe witness put himself in the hands 
the Court for the puipose of withholding or produc- 
ing the document. This is not the case of aa a^ 
Tetae wituea^ and, therrfne^ the point doea not ariii 



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98 



THE JURIST. 



according to the view which I took in Doe d. Peter t. 
WatkiM, (3Bing. N. C. 422 ; 4 Scott, 155), and which 
was taken by the Court of Common Pleas on the 
ailment for a nonsuit. If the witness had objected 
to pTodnce the document, counsel for the party inter- 
ested in its non-producUon might have been heard, but it 
would be on the point, whether, upon the foots disclosed 
in evidence, the witness was bound to produce or to 
withhold it. But the point does not arise here, because 
the objection was not insisted on ; it ought to be most 
distinctly taken. Theprivilege on whicn it is founded 
is of a strict nature. Why is a party to be deprived of 
the benefit of a fact which a witness* knows, because he 
supposes that his client may be a loser by its disclosure! 
I do not say it was necessary to serve the client with a 
subpoena duces tecum ; I think the presence of his at- 
torney in court was sufficient for the purpose of this 
objection.] Secondly, there was no estoppel. All estop- 
pels mnstM mntnaL (Aw«o» t. Bvom^ Cro. EI. 700; 
£nan^y, Robertt, 2 Wils. 143). "An estoppel de- 
termines by cesser of the act, deed, &e., which made the 
estoppel." (Com. Dig. « BBtoppeV "ting Co. 

Iiitt. 47. b.) Here the defendant seeKs to avoid the 
lease, because there is no estoppel. Again: "Acceptance 
of rent &c. by him who then had no title shall not be 
an, estoppel." (Com. Dig. "Estoppel," (E. 7), citine 
Co. Litt. 352. b.) \lVightman.^^\ do not understand 
the case of Doe A. Cdemere v. Wkitroe, (1 Dowl. & Ry. 
N. P. C. 1 ).] CW. adv. wit. 

Lord Dbskxv, C. J., now delivered the judgment of 
the Conrt. — This was an ejectment tried before my 
Brother Wigbtman at the Summer Assizes, 1844, when 
a verdict was found for the lessor of the pliuntiff, sub- 
ject to the o|nnion of Uie Court upon sevenU pointa that 
were reserved. 

It was brought to try the validity of certain leases 
made b^ the late Earl of Egremout, under a power con- 
tuned in the will of Charles Earl of Egremont, dated 
in July, 1761. The defendant held the premises in 
question under a lease for lives, made by the late earl, 
under the power, on the 23rd March, 1820. The plain- 
tiff contended that the lease under which the defendant 
held was not in accordance with or warranted by the 
power. But an objection was taken, wliich, if well 
founded, was &tal to the plaintiff's right to recover, 
and rendered the consideration of the questions as to 
the validity of the lease unnecessary. The objection 
was, that there was a term outsUwding in trustees for 
1000 yeats, created in 1706 for certmn purposes, and 
then to attend the Inheritance; and it appeared, that, 
hj an indenture of the 1st Mami, 1757, the indenture 
creating the term was recited, the specific objects of the 
trust were declared to be satisfied, and the executor of 
the surviving; trustee of tlie term was required to asngn 
it, to attend the inheritance. The deeds themselves 
were in court but in the hands of the solicitor for 
mortgagees, who declined to produce them, as being 
part of the mortgage title. Secondary evidence, how- 
ever, was given of the deeds, by means of an abstract 
compared M-tth the originals, and produced under cir- 
cumstances which we think warranted the reception of 
such evidence. The abstract was produced by the soli- 
citor for a gentleman who had proposed to exchange 
aome property with Lord Egremont, but which ex- 
change hod not been carried Into effect, and who had, 
therobre, no title which could be affected by the pro- 
duction of it; nor had the solicitor any instructions 
from any one not to produce it. He did not volunteer 
the production, but said he was ready to do so if the 
judge thought that he ought to produce it. The judge 
thought there was no sufficient reason why he •hould 
not, and we are of the same opinion. 

The question, then, is, there being no demise by .the 
tmstee of the term, whether that term, created in 1708, 
and existing In 1707» conld be now set up by the de- 



fendant to defeat the claim of the lessor of the plaan^ 
There was no evidence in the case to warrant tlie p 
sumption that it was either surrendered or mei;^ed, 
the inheritance. On the contrary, the last dcmaxni 
respectii^ it shewed that it was kept alire in wdei^ 
attend the Inheritance. 

It was formeri^ considered that old terms, asugiie4 
attend the inheritance, might, when set up to de^ 
the title of the person for the protection of whose esb 
they were assigned, be presumed to iiave been sora^ 
dered. (Doe d, Burdett v. Wrighte^ 2 B. & A. 710, 
which all the previous cases ore cited and conasdo^d 
But it has subsequently been held, and we think i^;li.t]j 
that the surrender of a term to attend tlie inhentaa 
is not to be presumed from mere lapse of tim^ ni 
unless there be express evidence to warrant such pxi 
samption. {Doe a. Blacinell v. Plowman, 2 B. & 
573). Several cases are cited in Sugden on Vende 
and Purchasers, in which Lord Etdon expressed s atroi 
opinion, that to presume the surrender of a term to s 
tend the inheritance would, in most eases, defeat tl 
object intended by the assignment of sudi terms, 
may, therefore, be taken, that, after the deciuon of J3 
d. Siackiull r. Plowtnan, down to the passing of tl 
8 & 9 Vict. c. 112, the surrender of a term to attend tl 
inheritance was not to be presumed from mere lapse 
time, and tliat the omisuon of a demise In the dedm 
tion by the person entitled to the term would de&i 
an ejectment by the beneficial owner. 

The statute of Victoria, taking effect only from tlx 
3Ht December, 1845, does not affect the presen 
case ; but it was said that the defendant himself Kel 
under tlie some original title as that under whic' 
the pluntiff claimed; and tlie cases of Doe d. Cole 
men v. Wkdroe (1 Dowl. & Ry. N. P. C. 1) and Bar 
tpiei d. 7%e Mamr ofRiehmmd v. TliomptoH (7 T. R 
488) were cited. In the first of these cases it wai 
held, that the interest of a tenant for life and rever 
sioner were the same, and that a lessee of tenant fo 
life could not ^ew adverse title in another at the tim 
of lease granted, but he might shew prior title. Xi 
Barwck d. The Mayor of Riamond v. Thompim it vta 
held, that the tenant could not dispute the title of th( 
person under whom he held as tenant. Neither of thesn 
cases are applicable to the present, for the defendant doe 
not deny the general title of the lessor of the plaintifl 
but, in an adverse action to defeat liis lease, insists upoi 
the prior legal title of a trustee of a term to attend tin 
inheritance for the protection of the estate of the leaso: 
of the plaintiff, under whom, as the lessor of the |daintil 
contends, the defendant does not hold. There is no ruli 
of law to prevent the defendant setting up the oat- 
standing term in such a case as this ; tm lessor of tlu 

filaintiff himself denying the right of the defisndaat'i 
essor to grant the lease. 

Upon the whole, therefore, we think that the onuMioD 
of a demise by the owner of the term is a fatal defect 
in the plaintiff's case, and entitles the defendant to a 
nonsuit, making It unnecessary for us to consider the 
other questions in the eun^RmU abtohU to mter a 
ncntuit. 

MICHAELMAS TERM. 

COUIHS V. KllfQSBDRT. — No9. 0. 

A Declaration contained a Count far dombie Valmot and 
a Count far U»e and Cheupation. 7%« Pmiicntam^ 
Demand ttatedt that Plaintiff tought to reeoeer, tmder 
the teeond Onmf, 76/., being the eirngte Rent nf tke 
Premiaet mentioned m the firtt ComtU. DefendmU 
paid 161. into Court upon Me second Cotrnt, whieh 
Plaintiff tool out of Court.. The Holding Over in the 
first Count and the Oceupatim m tke seeendy were 
during the same Period.-^Held, that PbAOffatigit 
stiU reeomr tuen the first Coma. 
Debt. The fint oonnt mt lor the donbte nfaw of 



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THE JURIST. 



99 



iiiiMMiii beld orer, after a notice to quit by the Umd- 
lord ; tbe mcfoid eoant was for the dm and occnpation of 
tbe iRBe premtMS. Fleas: first, to the first count, nil 
da^ai; seeond,totheieeoiidcoant,pByinentof7fi/.into 
coot. T%c particalars of demand stated, that the 
fUmtUf sowfat to recover, under the second count, the 
CBK flCTS^ Ming the single rent of the premises roen- 
lawaieA in the first eoant for one quarter. Tbe plaintiff 
took the "i&L vai of court. On the tiial before Lord 
Thsiwaii, C. J., at tbe uttings at Westminster after 
latt Trinity Term, itappeared that the second count was 
tawght for the use uid occupation of the premises 
^uiBg the mtat quarter aa that for the occupation of 
vhadi tbe double Taloe was sought to be recovered. It 
was gtijeetcd fiv the defendant, that the plaintiff hav- 
IBS treated the defendant as tenant, by accepting the 
3fta. M the ^Dgle rent of tbe premises, conld not chai|^ 
Job with dewde vohie for holding over. The Lord 
Cfeaif Jostk* ovnraled objectum: and a verdict 
VM gfTtm for the plaintiff for leave being re- 
served to th* defaadwrt to move to enter a nonsuit. In 

Il—/nf moved accordingly, or for a new trial, or to 
■alMa the dnsgea. — The puunttff cannot maintun a 
csni ftm imMt value and a connt for use and occu- 
xf be accepts tbe money paid into court upon the 
IGiJiriJgtif I. — How can that, which is a matter 
WMfi r'l^f after action brought, be an answer to tbe 
£m eout f At meet, it is the case only of two incon* 
mta^ vamU. Wt^mmt^ J.— In Ryai v. Riek, (10 
JSsat^a), Lord EUenboroush said, (p. 62), "If the 
traiWr ef tbe aisgle rent had been accepted before the 
■ctiaa toeoght, it vonid have been a question for the 
jKj to have detemined whether it were not a w^ver 
«rtte]BDdlaid*adaimto the double value : if it were 
Miftsd after aetm brought it became a question 
nft what iatent it was received, whether in put laUs- 
iMfisaef tbe doable value or as a waiver of it. At any 
M^kiaaaesU^fel in law; hot an estoppel, if at all, 
eat <rf the acta and intents of the parUes, which 
kave gone to the jury.*'] Here the particalars 
eftfcrpjaiatiff^s demand are*eoticlastve that he accepted 
tie me— y paid into court on the second connt as rent. 
[fhliiidyi.J.— Idonot see how it can be ground for a 
■■Mut, tbeoch it may be ground for reducing the da- 
■apL Urd Dmman^ C. J.— The plaintiff had a 
**MEd ri^ to the double value when he commenced 
Ail jMtiaB; hew can payment of part be an answer?] 
HpjihrafitfAaa aocnted 7bl. as rent for an occupation 
if tfce pimm by the defendant rightfully, 
i^Maa, C. J^That is negatived by his proceeding 
vi&thaaelioB; and, in my opinion, a pmon may re- 
onr k SB action for nae and occaintioD, though the 
pnaiBei were wrongfully.] Suppoae the puunMff 
vd iei ^ t two actions: ejectment to recover poasea- 
■■■)J^ri% tbe demise on the 20th September, 1840; 
*>d m actua for nse and occupation, for rent accruing 
^ at the end of tbe next quarter; would not that 
akevtbat the defendant was not a trespasser during 
ftatnarterl [Widitman^ J.— The question is, wbe- 
thnUu plaintiff took the 7bl. out of court waiving the 
^■K ket double value, or only pro tanto ?] In Ryal v. 

(10 East, 48), the money was brought into court 
^pMiaplc^ctf tender of certain sums of money as rent 
wtheamniace mentioDed in the second count. It is 
* )MMa for the Court, and upon which the judge 
^tpa to direct the jury, in point of law. 

Cur, adv, vuU. 
laii DmiAMf C. J., now delivered the judgment of 
^ Coart^In this case, we think there sboald be no 
nb. TWcHeofJ7^v.JZicA (10 East. 48^ is almost 
ftiaBcin its ciretunstancea, and Loni Ellenborough 



*!Wt.i, bsAmLeedDcuBaa, C. J., Coleridge, Wight. 
«%aii&ta,JJ. 



took the same view which I did at the trial. The only 
diflerence is, that in that case it was said, that it waa a 
question for the jury whether there was an intention to 
waive the risbt to doable value. In this case, the 
counsel for the defendant placed the defence entirely 
upcm the pmnt of law which he raised, and did not wian 
to have anv question left to the jury; and he was quite 
right in taking that conrae, because it would have oeea 
absurd to ask the jury whether the plaintiff had wuved 
that which, by tlie ccntinned prosecution of his suit, he 
was seeking to recover. Ana we are of opinion, that 
nothing appears in the particulars of demand which 
dirests the plaintiff of the r^ht to recover double Taloe. 
— Rt(h rtfited. 



SITTINGS IN BANC AFTER MICH. TERM. 

Bbo. ff. Frikcis CoorER. — Dee. 4, 

An Indietwu^ is not maiatmiu^U agatntt «m OoerHtr 
for removing a Pauper under am Order made in pur- 
suance of Sect. 79 of Stat. 4 6 IVill. 4, c. 7G. after 
it hai been confirmed, on Appealt the QtuuUr Set- 
tionSf it^ject to a C<ue for the Opinion of thit Courts 
and before the final Determination ofithjf thit Court; 
it not being ttated that the Removal was efeeted ^ 
Fraudf ForcCy or Menace. 

Indictment found at the Spring Quarter Sessions of 
the West Riding of YorkahiTe in 1847. The first count 
stated, that, on &c., in 1846, Martha Lye^ the wife of 
Peter Lye, George, aged fourteen years, Edward, aged 
six years, and Fanny, aged seven months or thereabout^ 
their three ohildren, had gone to inhabit, and were then 
inhabiting, in the- towwbip of Manchester, in the 
boroagh of Manchester, In the county of Lancaster; 
and that they became and were, on &c., actually 
chatgeable to the townahip of Manchestor, being a 
township liable to maintain its own poor; that the 
ovemers of the poor of the said township made com- 
plaint to two justices of the peace in and for the aaid 
borough of Manchester, that tliey had come to inhabit, 
and were then inhabiting, tbe said township, not hav> 
ing gained a legal settlement there, nor having produced 
any certificate acknowledging them to be settled else- 
where, and that they had become and then were charge, 
able to the said township of Manchester ; and that the 
said oveneers made application for an order of removal 
of the said paupers to the place of their lost legal aetr 
tlement ; that the justices made their order accoraingly, 
and thereby adjudged theplaceof the last legal settlement 
of the said Martha Lye and her children to be in the 

Earish, townahip, or place of Sheffield, in the West 
Liding of the county of York, and thereby required 
the said oveneers of Manchester to send by post, to the 
overseers of Sheffield, a notice in writing of the said 
paupers being then chargeable, together with a copy of 
the order and a copy of the examination on which the 
order was made; and if no notice of appeal agunst the 
aaid order should be given by tbe churchwudens and 
oveneers of Sheffield within twenty-one days after the 
time of sending tbe said notice, then the said justices 
did, in and by tbe said order in writing, further order, 
that forthwith, after the expiration of twenty-one da^s 
after the sending of the said notice, dec, or sooner, if 
tbe church wardens and overseers of Sheffield should, by 
writing under their hands, anee to submit to tbe said 
order, the sud overseers of Manchester should remove 
the said paupers to Sheffield, and deliver them, together 
with the order, unto the churchwardens and overseers 
of Sheffield ; but, if notice of appeal should be given 
within the twenty-one days, they further ordered, that 
forthwith after the time of prosecuting such appeal 
should have expired, if the same sliould not be dulv 
proaecated, or, u caae it should be duly prosecuted, 
than Inthwitn after the final determination of the 





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nme, if the said oTder shall be oonfinBed, they ehonld 
renaoT© the said Martha Lye and her children to Shef- 
field ; that a notice in writing of Ae paupers being 
olwimble wu duly algDed by the defmoMit, tiien <Hie 
tS toe oreneen of the poor of tiie laid temufaip of 
UandiflBter, and hy diven other penonB alio thenover- 
nen of the poor of the nod townsliip, and aent, with a 
«opy <^ the order and examinations, to ibo orerseen of 
jBu^eld, Uien being a town^ip liable to nuuntain its 
own poor ; that the overseers m ^effield, on the 10th 
December, 1848, oommenoed an appeal against the said 
order; that the appeal was duly proaecnted, and was 
heard the Janaary (Quarter Sessions for the boroagh 
of Manchester in 1847, at which it was ordered, thait 
the said order should be confirmed, subject to the opi- 
nion of the Court of Queen's Bench on a case, " which 
case was and is as follows: that is to say," &c [The 
case was set forth at Iei^gth.3 That the oTerseers of 
the poor of Sheffield had nerer agreed, bv writing under 
fh«r hands or otherwise, to sahmit to tne said mrder of 
two justioes: that, after the making of tha said order 
of the said Court of quarter sesnons, and before the final 
determination of Uie sud appeal, the defendant still re- 
mained and was an overseer of the poor of Manchester; 
that the paupers had not been removed from the town- 
diip of llanchester, but, on the contrary thereof, in- 
habited by personal rendence in the saia township of 
lAanchester, to wit, until tiie 12th January, 1847. 
That, on the dnv and year last aforesaid, the diefendant 
bad notice of all and eingnlar the premises; and the 
dcAndant, being such overseer of the township of Man- 
chester, and having such notice as last aforesaid, and 
being a person of a wicked and malicious dispodtion, 
and having no regard to the ivtj of his s^ office as 
EoA overseer, but intending to disobey, and actually 
^st^^ing, the sud order of the sud two justices, and 
intendme and maliciously devising to injure the said 
Martha Lve and her children, and ^so intending and 
au^ciously devising to aggrieve the inhabitants of the 
township of ^effield, and to cast upon the inhabitants 
«f the said township the charge of maintaining the said 
Martha Lye and her childi'en, did, on the said I2th 
January, a.d. 1847, with force and arms, wickedly and 
maliciously, and without any lawful warrant or au- 
thority, remove and convey the said Martha Lye and 
her children from and out of Uie said township of Man- 
dieeter unto and into the said town^ip of Sheffield, 
and did thai leave and deliver the said Martha Lye 
and her children to one of the overseers of the pow of 
Um township of Sheffield, tiien being a township main- 
lining its own poor, to the great £image of the said 
Martha Lye and her children, in manifest violation of 
the liberties of the subjects <d atu lady the Queen, in 
hreaeh and disrc^wl <» the duty of the defendant's 
office as such overseer of the poor of the township of 
Manchester, to the evil example &c., in contempt of 
the laws &c., to the gKat dam^ of the inhabitants of 
the said township of Sheffield, uad against the peace &c. 
The second count was the same as the first, except that 
it did not set out the case, hut referred to it as recorded 
W the Court of quarter sessions. The third count was 
tue same as the second, except that it charged that the 
deftndant, with force and arms, wickedly and mali- 
dondy, and without any lawful warrut or authority, 
and nnder pretence of boi^ authorised on behdlf of the 
then overseers of the township of Manchester to re- 
move the sud Martha Lye and her children under the 
said OTder so made by the said two justices, and under 
ooloor of the said last-mentioned order and of the sud 
last-mentioned appeal having been finally determined, 
removed and conveyed, and caused and procured to be 
ranoved and conveyed, the said Martha Lye and her 
children from and out of the sud township of Man- 
chester unto and into the uid townriiip of Sheffidd, 
Ae., in Inreach and disregard of the m order of two 



justicra, and of the said last-memtioned order of tiie 
Court of quarter sesaiona, to the evil example &a 
contempt of the laws &«., and agunst tiie peace 
General demurrer and joinder thereon. The dems 
was argued by 

ffa£^ for the decant. — The Tranoval of a ^ 
by the overseers pending- an appeal, if _d<me wit] 
force, fraud, or conspiracy, is not an indict able g ift 
though the removal ma^ have been prematura. ' 
doing of a thing prohibited by statute is indicia 
where the intention of the atatnta is to fortiid an 
and m^e it criminal on pablie grounds — sot vb 
it merely regulates the exercise of a right beta 
party and party, or one body^ of persons and sooti 
Many statutes prohibit the brinnng of actioiiB is { 
ticnlar cases without notice, or tne faxii^ng of adi 
after the lapse of a certain time; bat H is not an iad 
able offence to do so. Further, the indietnent is H 
tire, if it is founded on the proviso in the 79tfa aed 
of Stat 4 at 6 WiU. 4, c. 76, that, if notice of af\ 
against an order of removal shall he received within 
twenty-one days, it shall not be lawful to nD0TC| 
pauper until after the time for proaeentmg the api 
shall have expired, or until after the final detennina] 
of the ajmeal, — it is bad for not conduding i^ainst 
form of the statute, and for not stating that notice of 
peal was given. If tlie indictment is grounded ra i 
obedience to the order of the removing jnstieeik it is t 
for not ^l^^ng that notice of appeal was prea 
twenty-one days, in pursuance of the otd«. 
in the execution of the order afterwards is a mere insi 
gence : by sect 79, service of notice and of grmmoa 
appeal afler twenty-one days, though good, is no rtsy 
proceetim. The indictment shews an a^nd pnxH 
tion and hearing of the appeal ; bat n«w of the eeU 
'Contain an averment that die paridi offioen « 'sj 
Chester were parties to that prooeedii^: coansteau 
with what is alleged, the whole may have been ex pari 
The words « which case was and la as follows" in ti 
first count, do not amount to a finding by the gra 
juiy, that anything stated in the case was a &ct, 
the ease was agned as it purports to be. (JIm v. wK« 
8 B. & C. 43»; 2 M. & R. 4*4). Again, 
seerions are said to have confirmed the order, ■"•'i!^*' 
a case, it does not appear by any proper averment tw 
the case was ever aigued, or ev^n drawn up, 
the purpose of this indictment. The indictmeat oijg 
to have shewn what was done upon the order of aeSMfl 
90 as to make it appear that the appeal was duly pr» 
cuted, and not finally detennuwdi. If it is an 0^ 
independently of the order, the fint count is doe^lea 
ambiguous. (Bex v. MarJuUl, 1 Moo. C. C. Tb 
indictment should have shewn that the legal 
of the paupers was in Manchester, uid negatived ws 
it was m Sheffield ; (Rex v. Bdwardg, 8 Mod. 3M; W9 
V. lanfflof, 1 Ld. Eaym. 790); and it should slwiw" 
shewn that Sheffield would be burdened. ^ 
Wame, 1 Str. 644). The Court cannot allow the » 
pense incurred by mmntaining the pauper betwMB W 
time of giving judgment at the sessiocs and that m w 
Queen's Bench, (2 Nol. 623), except upon 
application, under certain circumstances, wbic" ■ 
strong reason for removing the paupers. Tu9 
lant parish may be reimbnised the «^°*®L^T 
taining the paupen, under sect. 84 of rtat 4 & » 
o.7«. The mere allegation of malice is not 

and the &ct8steted negative malice. I**^? v*7h ' mS- 
ment is bad for not mentioning the names of the ff^ 
seers of Sheffield. (/By. V. P«niw,3 ft. B. B«P-»"' 
6 Jur. 822). , 

PaghUy, contra.— Where, upon an appeal "g^frr 
order of removal, the Court of quarter 
special case, which has not been abaiadoned, **^T 
is not determined, and no lawful wan ant ^ 
therefore, the paupen were removed wxsag™*/ 



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101 




^pQ7*ItnMt ba itkm that notioe of appeal wm 
>• , uanfitiBMnt Msaffidcnt: no more oertUDty 
wndaminfiebiMotthanin adeolaration. (Rm 
,Cow]k682; Bar.Stneiu, 5 East, 244; JZetr 
3C,& P. 6$). The first two comits ohai^ 
■■M the datedant aa oveiaeer, and they 
kwiiictaffeDce. (JiesT. ^Dn^,2 Burr. OeS; 
T. EML8C.&P.6n). The ordinuT rale is 
Vjl^ uufieUb JZ«i V. SMIM, (Cald. 397, 
'Sili^iiaKtiNtson bare mtention, it is not 
Mel^mkn; bat immediately whrai an aet 
uckffiwbcs, not only of the aet done, bnt of 
at with wtid H a done ; and if it ia coupled with 
Jwj^wWoni intwrt, thonsfa the aet itself 
owmsi hm been innoeent, toe intent beii^ 
'''tAiMWaBMerimhidandpnnishable.*' [He 
IAT.a««,(2Str.i074);andUwrtnce,J^ 
^•.^^ (i Eaat, fi, 21 ).] This indictment 
'•HWtoeatthe burden of maintaining the 
r v^uUyapoi She£Beld, and the act of re- 
m AoWiBieeoftbonier; aad, thoefon, Btm 
OAU.&E1L706; 3 N. & H.U7)i»not 
i^UMOTttmrgiTCs relief wboi there is do 
, fc*''^''"'"" it wnmrfolly, he b iadieta^ 

y*^»»^lBt*t,V,h.,p\.9ri; lRnaB.on 

■;^ M«^^ Gww^tf; ifar r. Bbilmd, 1 T. R. 692). 
^^^ "frwwiwn art indoeement, and,theTe- 

MMmj, " ai rtBtogira tatbority to the Court of 
^r* ? " ."ttfl M order, disobedience of that 

S?^ *f **T™ ?"»Jictinent.fordisobedieDcetoan 
Tj^^f^'^oftoceat omnraonlaw. (Note 
Qg/** '-^5?*. 1 Wma. Sannd. 136 c, 6th edit- 
• ^'S???!*^- 203, aad other oases). 
K «fitjt41G».3^e.22, Ae poor-rate may 
by Wwithstanding the parson nted 
" II!! *^ appeal against the rate; 

«PpMl opeiatee as a stay of 
"^'t Was an indictable offnice to 
_tfcefw^>Bothe certiorari had iwned to re- 
^ «*^^,™ftfe quarter BBWona. [H* cited 

^yj^^"^l^^"(^-yi The principle that 
• «nf «V ^her proceedings w«a adopted 
^ »»«aQoi»n law. (Theodos. cSde, 

A-Urtt-V-.^Cod., De Appellationibua et Con- 
,i1l^iiiiitBi &7,tit.C2; Dig,lib.4»,tit. 7; Voet, 
C^^aMtnil p. 1148; Ayltfle, Parergon, 73; 
OiirHin a^ittfa. 1, tit. 290; Paekmm't com, 6 
Otk JM Imm of nnteMe of deprivatimi, the In- 
ewibeBtbrtSbA>liriQg,^aiid no nedi bstitatioa is 
iBMiMirfirNitaMtiireTensd. Soincaseof^Torce 
wmkmmL Ja^pMiisinthenatareofawritofeTTor. 
/^^/,ii/^T. Ada,! T.R.414, 417). As 
^ lAW a«H^ tiw Mendant mast be taken to be 




ngjgo^ J.*— Oaring tihe aignroent a qneBtion 
-uiairH' wqaire farther connderation, 

^l^|L^0eeeass'7 to decide it. The first two counts 
the (ufendant removed the paupers from 
Mptires, with intent to injure the paupers, and 
^^^gn the uiWbitants of the township of Sbefllield, 



% $not»i lodged against the order, and before 
-J jSomu^i''^: Pashley contended 



Ik lodRbig <^ the appeal was a stay of proceedings. 



noial sp<™ proceedings taken sabseqnently to its 
J^^itrA Bnt the question which first arises is, 
^^n— infietable offinice is chaij^ ; and this being 
tki^^ ftr our decirion, there is no distinction be- 



C. waaatAorilttvatNiriFriMi 



tween the oonnta. I cannot see any indictable offence 
chai^ged in this indictment— not any aatisfactorv prin- 
ciple upon which we can sav that the act charged u in- 
dictable ; nor has any authority in point been cited. 
The indictment alleges, that an order of two justices 
was mad^ bat no notice of ai^teal iaatated to hare ban 
giren agauwt it. An appeal is stated, and confiimation 
of the order by tiu ssauMi^ subject to the opinioa of 
tUs CooTt apon a ease; ud then the pauper is re- 
moTed. But there is no allegation that mud, riolenM^ 
or menace were made use of in the remoral; nor is 
anything stated from which compulsion appears to ban 
been employed. I cannot see that such an act brings 
the defenduit within the reach of the criminal law. 
There is no ground for saying that a contempt of the 
quarter seerions has hem committed, or a disobedioioe 
of the order. 

WiOHTMAN, J. — ^The indictment does not state wbat 
amonnts to an assault, fiilse imprisonment, or any im- 
proper restraint of the person ; bnt it is founded on the 
remoT&l of a pauper under an order of two justices, after 
it had been appealed against, and confirmed subjeot to s 
special case. liwasargued, that this being a ooiuitioaal 
dedrion by the sesrions, the proceeding was in tht aft- 
tare ^ an undecided appeal; and it was eontenda^ 
that it is an indictable onbnee to execute an order of 
remoTal during that period. Hr. Pashley, in part of 
his argument, put it as a eontempL and cited many 
analogiea; but the authorities merely shewed that an 
appeal has the effect of suspending proceedings upon an 
oraer of remoral. No autnority was brought forward^ 
proceeding upon the ground, that a party whohaabeoa 
successful at the sessions is indictable, if he acts npoa 
the judgment giren in his &rour; and I am not do- 
rirouB of extending the limits of the criminal law. 

Erle, J.— It is the duty of this Court to prerent a 
party being held liable to an indictment, unless there 
has Iteen a contemptuous disobedience to a clear law. 
Here no such case Is made out. The chai^ is, tiiat the 
removal took place pending an appeal against Uie Older. 
It is assumed, that an appeal against an order m- 
moral neeeaaarilr snspenaa all proceedings to exeonte 
the order. No duect authority was eitedfor that nto- 
porition, but Bcreral cases which Hr. Pashley urged M 
strong analf^es. An appeal is always by virtue of a 
statutory prorinon, and the effect of it ia to be aacer- 
tained by looking to that provision. There is aiq»ecifio 
enactment in sect. 79 of stat. 4 & 5 Will. 4, c. 76, that 
the pauper shall not be removed until twenty-one days 
after notice of his bein^ char^able ; and a proviso, thatf 
if notice of appeal is given within twenty-one daprs, the 
pauper shall not be removed until after the time for 
prosecuting the appeal shall hare expired, or nntil after 
the final determination of the appeal. I am not qiUtO 
prepared to say that the order is suspended by the ap- 
peu in tlus case. It is, however, enough for the deo- 
sion of this case, that no podtive rule « law has ben 
infringed, and that, therefore, the indictment h not 
sustainaUa.^-Vw^jriMiK/M' ^mdanf. 



COURT OF COUHON PLEAS. 
SITTINGS IN BANC AFTER MICH. TERM. 

CowLiNO 9. CoXB.— i)«r. 7, 1848. 

Action againtt Witneu — AvenitaU,tkat Plaint^ had a 
good Caute of Actum — n^fUader. 

In order U mamtain am Aelion dt^ntiuf a Witnm /or 
not attmdtHff to ffite Btidmee m obtdimee to a Sm^ 
poena, tke Plaimtif mut skew that he hoi, m mum- 
fMnes «/ Ail AhttHce^ tuataimed mme Damage: (Hi 
inbere tkere «rv seMra/ Itvtm for Trial, the O ir om m 
mmmo$ that tka Pt mj^ tjf ktd mo goti 0mm ^ AtUm 



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THE JURIST. 



does not neeettartfy exclude the Plaintiff /rom having 
sustained such Hamaffe^ at he majf haee sustained it 
in respect of the Costs of some of the Issues on which 
he might have smeeeded Igr the Testimony of such 
Witness. 

In an Action against a Witness for not cAeyinga Sub- 
poena, the Deelarationtofter alleging that thePlaintiff 
lusd impleaded on« T. /% and tkat certain Issues joined 
in that Action mere to he tried, and that the Defendant 
mas served with a (km/ of a Su^pcena to testi^ 4^** 
averred thai the Plain^ff had a good Cause i^ Action 
in that Suit, and that the Testimony of the Defendant, 
in obedience to such Writ of Subpoena, teas necessary 
and material to the Trial of the Issues; and assigned 
for Breach, the D^endanfs Neglect to appear and 
give Evidence; by Season of tthteh, the Plaintiff was 
obliged to withdraw the Record, and he was compelled 
to pay certain Costs, and lost the Benefit of certain 
Costs, S^c. The Defendant^ by his Pleas, traversed the 
Averment that the Plaintiff had a good Cause of 
Action, and also all the material Averments in the De- 
daration, besides pleading Leave and License. Issues 
were joined on these Pleas; and the Plaint^ ea ike 
Trial (Gained a Ferdiet on all the luueg eaxa4 that 
on the Plea traversing the PlaisOiff had a good Cause 
of Action, which wtufeund for the Defendant: — HMd, 
that the Plaint^ was entitled taJwument non obstante 
Veredicto, and that there mu no Aeeessi^ for a Re- 
pleader. 

This was an action on the case against a n-itness for 
not obeying a subpoena. The declaration was in the 
usual form, and alleged, that the plaintiff had impleaded 
one Thomas Foulkea in a certain plea of trespaltis, and 
that such proceedings were had in the action, tiiat after- 
Tarda, before certain jastices of assize and Nisi Prius at 
Kingston, certain issues before then joined in the said 
action were appointed to be tried, and tlien came on to 
be tried before a jurjr, &e. The declaration also 
alleged, that, before the tiial of the issues, the plaintiff 
prosecuted out of the courtawritof subpoena, by wluch 
the now defendant was commanded to appear before the 
'nstices assigned to hold the assizes, and to testify &c., 
and which writ the platntilf caused to be shewn to the 
now defendant, and a copy thereof to be left with the 
now defendant, and then paid to the now defendant a 
leaaonable sum for his costs and charges in and about his 
attendance as a witness. The declaration averred, that 
the said issues came on to be tried at Kingston ; that 
the pI^ntifF had a good cause of action in the said suit ; 
and that the appearance and testimony of the now de- 
fendant, in obedience to the wriL were necessary and 
material to the triid of the said issues. Breach, that 
the now defendant, without lawful excnse, neglected to 
appear and ^ire evidence, by reason whereof uie plain- 
tiff was obliged to withdraw the record, and was com- 
pelled topay certain coets to tlie said Foulkes, and lost 
the benefit of certain costs which he bad incurred in 
proceeding to the trial of the stud issues. The defend- 
ant pl^ded, first, not gnilty; Becondly,a traverse of the 
allegation in the declaration, that the issues joined were 
ap]>ointed to be tried; thirdly, a traverse that the 
plaintiff sued out a subpoena; fourthly, a traverse that 
the plaintiff caused the writ to be shewn to the defend- 
ant; fifthly, a traverse that plaintiff caused a copv of 
the writ to he lea with the defendant; sixthly, atra- 
Terse that the plaintiff pud the defendant a reasonable 
sum for his attendance ; ssTenthly, a traverse that the 
issues were called on for trial; eightlily, a traverse 
that the plainUfF had a good cause of action ; ninthly, 
a traverse that the testimony of the defendant was ma- 
terial to the trial of the issues, or that he was called 
upon his subpoena; and, lastly, leave and license. The 
pleas were pleaded to the whole declaration, and issues 
were joined thmon. At Uie trial, before Parke, B., at 
tha Surrey Sammer Asslaet for 1846, the plaintiff ob- 



tained a verdict on all tlie issues, except the ii 
joined on the eighth plea, which was found for the; 
fendant. A rule uisi was afterwards obtained by Zt 
on the part of the plaintiff, to set aside the ven 
which had been entered for the defendant, and to b 
a repleader, or to enter judgment for the plaintiff i 
obstante veredicto, or for a new trial, on the groan! 
the verdict being against the evidence; ogaiutwh] 
in Trinity Term, 1847, 

Pearson shewed cause. — It is said the iasoe ruifd 
the eighth plea is immaterial ; but that is not k. T 
cases oi Masterman r. Judaon (8 Bing. 224) lodiJfft 
V. Lovell (4 Hee. & W. 678] are cases when it \ 
been held, that an averment in the declaration thst t 
evidence of the defendant was material for the pliinl 
was equivalent to an averment that the plaintin lud 
good cause of action in the original suit. In MtilUlt 
Hunt (1 C. & M. 7fi2) it was also held, thatsuchf 
press averment that the plaintiff had a good cause 
action was not necessary, ont that it was sufficient ti 
appeared that the witness subpoenaed could have giv 
material evidence, and that the plaintiff could not iu 
safely gone to trial without it. These eases, w far 
they affect the present question, rather tend todw 
that, in order to maintain an action ^insttbe ntoe 
the plaintiff must prove that he had in the origii 
action good cause of action; and that the Act of t 
witness beiug material is priiii& facie eridence to esi 
bltsh it. In Davis v. Lovell, Lord Abinger, approring 
Mullett V. Hunt, says, " that the good senH of tbe nuU< 
is with the observation of Lord Lyndbatst in that cas 
that no evidence can be material in a cause, un\«s 
plaintiff has a good cause of action ; and, therefoi 
tliat it is sufficient to aver that the evidence of tl 
party was material and necessary in the trial, and tbi 
for want of it the plaintiff was nonsuited. Wittth 
averment the plaintiff could not aopport the dewt 
tion, unless he proved that he had a good ghhbm > 
tion in the original suit.** In the pnseot 
declaration does not even say that the testimony of n 
defendant was material for the plaintiff on the tru 
but Mmply that it was material to the tnaJ of U 
issues. Amof r. Long {9 East, 473) diffen from Uu 
and is very distinguishable. In Needham v. Frastr,[ 

C. B. 818), it was considered the defendant bad, by b 
pleadings, admitted that the plaintiff had a g""^^ ; 
of action in the original suit ; and he was, tbewW 
not allowed to give evidence to shew that the p'™' 
had not such a good cause of action. \_Masde, 

pose, in an acUon of trespass, there were pleas of ■ 
^tlty and of a right of way, upon which '*^°*?J!^ 
joined, and a witness could prove that the plwntiffM 
a right to the possession, and was entitled to a verA 
on Uie issue of not guilty, yet it would stilt be iwci 
sary to try the right of way; and because, as toth* 
the plaintiff might hare no good cause of «'^'!"''~J°,I 
he be unable to recover against the witness for not » 
tending?] This declaration does not inclnde suea 
case. If there are several usues, the plaintiff mj^ 
say in respect of which he had a good cause ™ 
and the evidence of the witness was material. i« i 
eighth issue, it is submitted, cannot be ^^^^^ 
tively; the traverse may bo in the same ''■^•"""Jf ■ 
plaintiff has alleged them. (2 Wms. Saund. 206, n. Zi, 
Smith r. Diton, 7 Adol. & EU. 1 ). At all events, tlK« 
cannot bo judgment non obstante veredicto, »r 
eighth plea does not confess the action, so 
there can be only a repleader. Gordon ». 

D. &L.308 ; 7 Man. & G. 607), where it « 

the rule that a repleader is never awarded ui * ''JL, 
the party who made the first finnlt appUa 
the issue is found against him. , 

Lush, contm.— Either there mast be joop^flZn ' 
obstante veredicto, or a repleader; for the «l««*JiL 
would be good, if the averment, which bsa ^ i 



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108 



1 



tliiB iaA(h plea, were stnick oat. The 
•■"p wmpiMMd of is, that the plaintt£F has been 
mmA to irithdiaw the record in consequence of the 
m m ittH i H nce of the witnev. That is now found by 
■•TOT to hive been the fact, and it is a damage 
iM ttut at «Uafieeted by the eighth plea. The 
■Ml ibaw that plea isqaite immateriar. as it can 
tm« fcr the defendant*! breach of doty, who- 
Ae ituBtiff bad ia the original salt a good cause 
«r adke tttot rcVmiKff, J.— What can he the use 
«r a mlcaiffl ft Kenu, from 2 Wms. Sannd. 319, 
M- it \ thit »i>m liiere is a Tcrdict on an immaterial 
fcatbtiefnidant, utd upon the defendant's own 
"■Sbetu hire no merit*, the Coortwill givejudg- 
■en thtutertie^cto, and not award a repleader, 
* tot nod the case.] It is a true test, to 
• WAt ^ntiffiinot entitled to judgment, to ascer- 
tfthe jtd uitim in this case he not good, without 
k* afimMittkrt tin plaintiff had a good cause of ac- 
It ii Hkittta, that the ser»ice of the writ of 
ua, aDd theftetoT the erideiw* of the witness 
wtaal, immMd on him snch an obligation to 

■ 3 ^*>temuialaeace acanaeof a^on. Tho 

■ J^ yy** ^ ll««t the testimony of the def!enda&t» 
- ■■J™^™"toitl; and that is sufficient to 

S^^™"^ It i<«id, that the finding is not 
™?* tfce tBKiKtf wu msterial for the phiintiff, but 
^VjfcfUw WrftlieiBuw; but the former appears 
_^fS?T?i'"^ ItUmbmitted.thatthere isno 
^T^™™,*««ft»tit is necessary, to maintain this 



0^ 



4 



^j^^ * iv 1 lit WHIM ■ jr , vu uiaiUMiiii miib 

■™^j«»pIdirtiffdKmld hare had a good cauae 
* "igiMl wit, but only that he should 

^fT Jtmsge. The case is one, c«r- 

^My , w Mtj ntiaiiBMion; but, if it does not appear 
•™*P'«**»R>*wtke original action was wantonly 
P'^ ^ . "T? r to bare been brought 

«*,it voald be Immaterial, as re- 
?2L *•* ynXamy whether the cause of 

At all erents, it 
ZJr "peculate whether the pUintiflF 

?^T'_'y".**»P.«nd he cannot, on that ac- 

sl^zSL-. ^* 

-Tfirl' **• """^ delirered by 

obeying a 

^22— fciL^S^S."" defendant to appear as a 
w^^www^lBttrst the trial of an action brought 
wjm mipimmXkmu Foulkes. [His Lordship, 
■p* ;';%(liitoe of the pleadings^ said :— 1 On 
■•^Wi WttJMf, B., a Tvdlet was found for the 
gtHBtiSaill the tvne^ except that on the eighth 
flM, ^ If. donign. The Tetdict on tb« eighth 
flttt^n'oiedtliat the plajntiff had a good cause 
of BeCMnatf Fonlkes, was for the defendant. A 
ffia imikKMA, calling on the defendant to shew 
am tkj Ik TCidiet should not be set aside and a 
jepW^mrM, or why final judgment should not 
fee mtmd far tbe i^tiff, notwithstanding the rerdict 
ir<fe Jii »* ^ t on the eighth plea, or why a new 
if^ ^MBot be had oD tu ground of the verdict on 
f^^MA pJet beiag ^net the eridence. On shewing 
aw i^Ml this mle, it was admitted, that, bo far as 
g ««ftr s sew trial and for a rerdict against the eri- 
H mH oet be supported ; and the atgnment 
at tfae qoestion, whcUwr the eighth plea, which 
^aJt^tbeplsiatiff had a good euiae of action in 



^l^i^ieit, was a solfiaient answer to th« action 
tht iritaMi for not ait«ndinr ; and, suppoung 

9Z|ttk0iafi6icnt, what ouffbt to iw the judgment. 
^jMiet is the raltdity of the plea, it is to be ob- 
-gfj^Atiteltn^on is for the injury sustained 
wteihiitif in eonseqiuBoe of the breach of duty 
WAtlMaat in not obeving the subpoena, and by 
^«if lAidi breach of duty the dcelaratiwi aliegea 
^ jinljl vat ddi^ad in ncorcring hia dam^et 



against Foulkes, and also was obliged to pay him cer- 
tain costs, and also that certain costs incurred by the 
plaintiff in proceeding to trial became useless ; and the 
question is, whether the want of a good cauae of action 
against Foulkes shews that the plaintiff is not entitled 
to recover for any part of this matter of complunt, for, 
unless it has that effect, the plea, being pleaded to tbo 
whole cause of action, is bad. By the statute of Anne, 
which enabled the defendant to pload several matters, 
or since that statute, when only one issue has been 
joined, a plaintiff who had no cause of action could not, 
under ordinary circumstances, austein any damage from 
the absence of a witness; and this is the reason why, in 
sereral of the cases which bare been determined on the 
subject of the action for disobeying subpoenv, (when it 
did not appear that more than one lasue was joined ), the 
Court have considered that an allegaUon of a good cause 
of action, either in express terms or in terms which 
were held to imply it after rerdict, was necessary to 
sustain the judgment for the plMOtiff, because, in the 
absence of anch an allegation, the dedaraUon did not 
shew the plaintiff had sustained any particular Iom or 
danago by the non-attendance of the ddSmdant. In 
an amon such as this ii, for a breach of duly, not 
arising ontof contract between the plaintiff and the de- 
fendant, but for disobeying the order of a competent 
authority, tlie existence of actual damage or loss la 
essential to the action, as the law will not imply a loss 
to the plaintiff from mere disobedience to the subpcena. 
But when, since the statute of Anne, there are sereral 
issues, it may be that the plaintiff has no cause of ac- 
tion, but yet he may have sustained damage in respect 
of coats of some of the issues on which, although fiuling 
in his suit generally, he might have succeeded by the 
testimony of the witness, if he had attended in obedient 
to hia subpoena. It is clear, that the terms of this de- 
claration comprehend such damage, and that the alle- 
gation that the defoidantwaa a material witness on tho 
issues ik after vcodict, a sufficient all^tion that the 
plaintiff would have succeeded on some of them if the 
witness had given his evidence; and, consequently, 
that he may nave sustained pecuniary loss from the 
absence of the defendant, although he bad no cause of 
action against Fonlkes. The eighth plea, therefore, 
although it shews the plaintiff could not have been 
damnified by the del^y of recovering damwes against 
Foulkes, and would, therefore, he a good^ plea to » 
declaration complaining of no other wrong, does not 
shew that he nas sustained no damage in conse- 

auence of the absence of the defendant: that plea, 
lerefoTC, cannot be sust^ned, as shewing the plain- 
tiff has snst^ned no loss. But a question was ang^ 
geated by the Court, whether it might not be aus- 
tained, as shewing that the plaintiff, although he had 
sustained the loss, had no right to sue for it as an in- 
jury, as, inasrouch as, having no cause of action agiUnst 
Fonlkes, he was guilty of a wrong in suing him, and could 
not recover against the defendant for a loss sustained in 
seeking to enforce a wrongful claim, for which, accord- 
ing to the old law, which ia atiU in form ohserred, he 
was liable to amerciament ; but we think, on connder- 
ation, that although, as respects the lord whose court 
has been occupied by a claim which could not be sus- 
tained, the |)laintiff wonld he li^le to make a peounl- 
aiy satisfiHtion by amerciament, yet that he ba% andnst 
such a wrong-doer, the right to have the nwterid tea- 
timony of a witnesa in support of issues on which he ia 
entitled to succeed, in order to obtain costs to which his 
right ia recognised by law. The eighth plea, therefore, 
as it does not answer the whole declaration to which it 
is pleaded, is insufficient ; and the defendant, who haa 
failed in all the other pleas. Is not entitled to judgment. 
The second question is, what judgment should be given 
on this lecora, taking the eighth plea to be bad ? By 
the statote of Anna, the question, whether there ahouM 



i 



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104 



THE JURIST. 



be a repleader or jadgment Don obstante Teredicto, de- 
pmdB on whether the plea, on which the immaterial 
urae arisea, admita a canse of action, by way of con- 
feBsion and avoidance; bat dnee that atatnte, ithaabeen 
held, althouffh the plea on whieh the immaterial iane 
-TOB foand U>T tJbe defendant did not confess the canse 
of action. If it was confessed or prored on the other 
pleas which were found for the deiendant, there should 
M no repleader, but judgment for the plaintiff ; and 
even although the pleas, on which the good isBues have 
been taken and found for the plaintiff, were not pirns 
in confesmon and avoidance, but traverses of material 
auctions in the declaration; and although some of the 
material allegations were neither traversed nor [voved, 
nor admitted, by way of confession and avoidance, it 
has been held, that where the otlier material pleas 
enabled the Court to give judgment, without requiring 
the parties to replead, in ordur to uiew on which side 
the right was, there uwnld be no npLaaAWf hat ind^ 
nent non (mtante veredicto. (See the ease oi Gcod- 
hume V. Amdmoii, 9 Bing. fi39; Ntgtlm v. MttektUt 7 
Mee. & W. 612). Indeed, a plea travemng an allega- 
tioa in a dedatation, although not for aU purposes, or 
in all events, an admission of the material alle^Uons 
in the declaration, which it does not traverse, yet it may 
be conridered as a conditional admission ; that is, as ad- 
mitting the all^ation not traversed, in case the plain- 
tiff can prove the allegation traversed; and it is cer- 
tainly 80 treated in the cas& in which, on a sii^le plea 
traversing a part of the dedaration, where an issue is 
found for the plaintiff, the plaintiff has judgment, and 
which he would not be entitled to, nmesa the Court 
considered the material alleg^ions, which were not 
ttavosed, as beiiw admitted; and the same oonsequenoe 
follows. If BSTeraT material travmes are all found for 
the plaintiff. In the present case, several travenes on 
material allegations of the declaration are found for the 
plaiutiff, who has also obUuned a verdict on the plea of 
leave and license, which is a plea in confession and 
avoidance; and the only iasue found for the defoidant 
does not shew the plaintiff has no cause of action. So 
that the Court, therefore, have no difficulty in saying 
that the plaintiff, and not the defendant, is entitled to 
judgment and has no reason to award a repleader to 
discover which is right. The rule, therefore, to enter 
jodgmant fw the plaintiff on tiM ei^th plea, non 
ob^mta Tcmdloto^ most he made abauute^Aw 

COURT OF EXCHEQUEK.— HitiBT Tm, 

TBOimoir «. Thb Univsrsu. Sjxvaox CoMPurr. — 
Jam* 90. 

Jbmt'Moei Cmpaoy—Wmding-up Aet^ 11 ^ 12 Vki, 
€. 45—7 ^ 8 Fiet. e. 110— JSeseutfew. 

WhtreJtidgmaU ka$ hem obtained agamtt a Joimf-ttoei 
Companjf compleleiy rtgiitered wtdtr tktl S^Z Vkt. 
e. 110, twUei oeeoMer tiwo/iMif, and on Order u wiade 
the Court of Chameery far mindiiiff-t^ Ht A^air* 
tmdertke 11 ^ 12 Viel, e.46,aitdan Qfieial Manager 
appointed for that Purpose, tke Plaii^ongit to aeek 
Sati^KHoHfar hie Del* ^ meam «/uie MatAmerf 
pntMlsnkelatierAeti andtheComtwiUnetgrmU 
E Kmitiom agamil a S^ankolder mndmr tke firmer, tm- 
Imitii lAiim that Mow Meant haee been reeertei to 
leMontSneem. 

The eoth Section of the 7 8 Vkt. c 1 10, which empoieer$ 
As Conrt to grant Eaecntion tn certain Caeee withotU 
« Scire Faeiat or Sng^eitum^ appKet to the Cote ef a 
Creditor who hae <^med Judgment a g a me t a Joint- 
etoci Compang^ and eeett Eaeaition againtt a Share- 
holder in it; iu( eneh SiBCCUtion will not be granted liy 
the Court nnU$tthtyaresatii/kd that the Ptemluf Am 
Jlrtt meed due Diligenee to obtain Satit/aelim fir hie 
Debtjhm the I^mde ^tke Ompang, 



Luth had obtained a rale caUing on C. Land, «i 
holder in the Universal Salvaga Company, ta 
cause why the plaintiflF ahould not be at ub«ty ij 
exeentioa agunat hia property and eficcts i^n^ 
ment obt^ned agunst the Company. It was a 
pany completaly regiatered under the 7 & 8 1| 
110, and wH not incorporated b;^ act of Farliaa 
charter, nor was the liability of its merobeis rei! 
by letters-patoit The party asainst whom this 
cation was made had been a ananuolder in it since 1 
ary, 1846; the plaintiff's judgment was obtained i 
16th May, 1848; afi. fik issued on the 25th, (oi 
the sheriff returned nulla bona, and the ap^licui! 
swore to his belief that any ^rther encution ij 
the property of the Company would be unaTiiliiii 
that the only chance of obhuning aatisCsetioo k 

Slaintiff's debt was by prooeedii^ agauBt then 
oal members. On the 10th November u oidt 
aolnte was made by the Cmirt of Chancery, undi 
Joint-otock Compamea Winding-up Act, (11 
Vict. e. 45), fbr tbe diaaolution and winding-mi < 
Company and r^iiraice of its afi^rs to a Msi 
Chancery to be wound up, and an official manage 
appointed aocordingly. Tha case had been before, 
B., at chamb^ wbo refuaed to interfere, conaid 
tliat it ought to be determined by the Court. 

Phipeon shewed cause.— The plaintiff is dieentiti 
execution against this party, for two ressons: hret 
Stat. 7 & 8 Vict. o. 110, whi<^ empoweis tiM Com 
grant execution under oBTtain circumstanoss ^ho 
scire fooiaa or suggestitm, doee not extMd to tiiu t 
That sUtute was passed for the regiatratiQit. lowrc 
tion, and regulation of joint-stock cmnpames; tot 
66tii section enaotathat "Every judgment and e 
daene or order which ahaU be at anytime afia 
passing of thb aot obtained against any compaii^rs 
pktely registered under this act, except oompsniM 
corporated by act of Parliament or charter, or oooipii 
the liability of the members of which is restricta 
virtue of any letters-patent, in anyactioi^ saitoro 
procee^ng proeecuted by or against such coouwi 
any oooH of law or equity, shaU and may tsto ei 
and be enforced, and execution thereon be uwm, 
only against the property and effects of such compi 
but d» if duo diligenee shaU have been used to <* 
satis&ctionof such judgment, decree or order, fay e» 
tion against the property and effects of sudi comp 
then against the person, property and f^ct" « 
shaMholder for the timelmng, or fVf^ JS 
holder of Buch ownpany hi his natural or i^""* 

Scity, unta such judgmwit, decree or order snii 
Uy satisfied ; provided in the case of <»ec"t'°'', 
any former ehar&older that such former shareboUer 
a ^arebolder of auch company at the time ^nf" 
tract or eiwagement for which snch judamMiS 
order may have been obtained wasentered mto, « «a 
a shareholder during tiie time such contract or ena 
ment was unexecuted orunsatisfied, « JS 
at the time of the judgment, decree or order b*WS 
ed" &c. By tiie 67tii section, " Every p«»«*g 
whom, or against whose property or eft^ 
upon any judgment, decree or order obtoiaed«»w" 
s^ have be^ isaiSdai aforesaid, ■»««l>»"?*ilj, 




used to oblam aatiafaetion thereof against the ia«PJ 
and efiecte of such eompany, Mch persw shali 
tied to contribution for so much of ««?J,*|^ ?^ 
costs and charges ae shall remain n>w»*»°*»'."rBD 
several other persona against whom 
snch judgment, decree or order "SJiS 
company might also have been iaaaed 
sionVtbatlaialf aforesaid; and that wh'^ 
tioa BB^ be feovrered ftom aoeh puiasoa ai aiw— 



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105 



h tk» mamfK m eeBtrifavtioiL m ordntair earn of 
y^Mt^ " And by the «8Ui Motion, <* In the CMM 
Bj Uiu ut for cxeevtioD on any jadgmort, 
•mm « «riet ia tay Kjtkm or nrit againet thecom- 
|iigr te k Bn«d anuit the peraon or iguiut tb« 
^nl^Bcts MuiyilMrdKildar orfcimer 8har»- 
t^mSi voBpaQj, or agunsi tke property sod 
tdteonpan it tho mt of naxeholder or 
s ia A i Uui n Mtiufcrliiea of mmy BHmico, d*- 
■,Miiid exfMMB pud or inenned by him as 
■id ii MtiflB or rait agVBBt the company, 
icMcrteaB^beintedWleaTe of UwCoortor 
•aWpil tti Mntia vhieta aocfa jndgBMit, decree 
: <ki kiTt bem obtaiaed, open motion or ram- 
fari to Aev enae, or otbw motion or 
MM oHtoit with the ^aetiee of the Court, 
Mt mjmmAm or scire ftciM in that behalf; 
IflrtitU^ kwM for nidi Court or judge to 
raMitt (t AKhagt such rule, or allow or di»- 
~ " [{m^atewoMj be), and to direct the 




«f tk^Matobe paid by either party, or 
ikt wh iftv nte therotn as to Boch Court or 



\ 



Imifftc. [0& PA^paoN proceeding to 
AiAtti|nn«f the Court to gnmt execution 
' ^ M action ns eonfined to the case of a 
nfienpuy seekiag to reeoap hinw^ 
'frkiiog bwn eaaapeUed to pay a debt 
fBJo I jadgmeBt recovered against it ; 
^ B,tiMnd tbt the point had been decided 
nK^fttCmtsf Commoa Pleas inPeartw. 

S ^ T t r lS^" ''■'^ Jonra., N. S., 

tppWOT to boTeavumed 
• SMMHT mj miintam an aelim against the 
aw^M^ fc wiA ke bdascB that diotom was nme- 
«MnfalkMnBoftibe CMC. T« thtsPAipsMt 
^MlftrttUewhsd been qoertioiMd by W^t- 
^jp% *> ■'(^mnll, and |voae«ded with Us aign- 
'WMmliefintMiBtjWhidi boworarwe onit asH 
KSBtkra^iHBt^ theComt. Intbeeovne 
tJlhM,fi,aid,«Tonake8eBseof the statute 
■^■ttfce vwdi 'rait* and 'recorer' in the 
I wfTthactina in a qualified sense. The real 
cntniphted by the AOth, 67th, and 68th 
Matfalined Hthig. A creditor reooTers i^ainat 
■ ^■■inj ad obtaiBs execution agwnst their pro- 
^^Uy towardg satiefyiDg his debt; he 
*■( M wtgenee applies to the Court under 
^^ ^l™" b b»Te execation against the property 
""oiJtii. He gets execution and hb debt 
.*T.gyy (tf a •bu«h<rfder, who then becomes 
^ w Wth seetim t« Teeerer from the 
■■;>M mdertbeOBtb •aetimi niply to the 
^^*|iHid that be haa been obliged ta pay 
'•wrfttieoBpMy^Mid have execution agnnat 
/■P»^flf tbe company ; if ho oaimot get his 
'**Vy he most go to a court of equity to 
M«a«tiihtion fr«n his co-dureholdets. If we 
fflrwwdi *rttbe nit of* in the 6Sth sMrtion as 
'eatbeapplicatioBof,' and 'torecoTer' in 
as 'catitleil to have,' it laakea all clear. The 
■ritig eMfnbatioD hen his oo-Bfaareholders it net in- 
imiiWjdketin thing, because the oreditor must 
km czfcMrted the ^ects of the c(»npany before it can 
> i — fc ^ t^ tbaefimthe riiat^older gets dam noes 
kniu*! ^ F^^*i» he may know more about the 
^ili mi wbm to go look tot them than the cre- 
^ ioM."] Bat secondly, instead of pioceeding 
the 7 & 6 Viet c. 110, «h« pUutiff ovght to 
^ flsaght Mtii&ctioD Ibr Ua debt by pnniDg It 
ate the /eiDt-fltoek Conpaniee Winding-up Act, 
tt 1 11 Ttet C.46. That sutote enacts that when a 
<f tUi kind becomca insolTHit any " contri- 
ialBf^ (t word defined by the interpretation clause to 
■M *naT ■■nil IT of a ooBpmy and also eroy 
i ^liM ii l i l i In nm rilm lr In ttin jrnjTrr-" -f r-j 




of the debti^ liaUlities, or losses thereof whether as hdr, 
doTisee, executor or admimBtntor of a deceased member, 
or as a former member of the same, or as heir, derise^ 
executor or admiBistrator of a feimer member of the 
same, dece as e d, or otherwise howwerer") may present 
a petition to the Court of CSuneery for the dueolntiott 
and windhi^up or for the winding-up of the afMn 
the ecnnpany. That Court w»y tbermpon rete tin 
aOain of m company io a Miotar in (Aaiwenr to be 
wound up, 1^0 is to qjpoint fitet an interim and afte^ 
wards an official manager for the pvrpoae, who is thai 
to make oat a list of the OMitrilmtoriee to the oom- 
pany. The MaBter is then to oiganlae a fund for the 
payment of the debts of the company by collecting its 
assets, and for this purpose making ealls on the contii- 
botoiies if neeesaary, who on Ute other hand are to 
prove their debts as in 1iankru;>tey. Power la iJm 
gives to him to direct Issnfls, special leases land acticMU^ 
and his orders are to hare the effect of orders of the 
Court. Tlie 78rd section of tiiat statute Hm enaefci 
thai ^tStar Hm first i^pointment of an officii manum 
BO creditor or other person ahall, except so Cur aa Qu 
Master shall permit, hare power to eommenee er to 
proceed with any action againit the (rfEeial mamger or 
against the ennpany or any person repr e senting the 
aanw, or who is sued as a contributoty thereof until 
after proof, or exhibitijig or making sudi proof as he 
may be ame, of his debt or demand before the Hasten 
ae hereinafter mentioned; and it shall be lawful for 
any judge of the court in whidi sudi action shall be 
pending upon smnimnu taken out before him for that 
pnrpoae, to order that all further proceedings in such 
action anall be staged until after such proof wall hare 
been made or exhibited before the Master.'* It was 
ekarly the intention of tiie frameia of this art to ooni- 
pd ul cndliexB htTing debts or demands i^iduat n 
laaolvent j<dat-etoc^ oompany to come in ud provo 
them befi»e the Master m Cboncay; and the obj^eefc 
of Ha frameii woold be whdly defiMted If execution 
under the 7 & 8 Viet. e. 110, eoold be inned againit 
iadiridual shareholdets of the company. 

LtuA, contra, having been directed by the Court to 
confine faitnsetf to the second point. — The Jotnt-stock 
Companies Windinr-np Act was passed for the benefit 
of the creditors of those companies, and not to protect 
parties who may have become members of them witii 
the view to improvident speculation. When therefore 
the Legislature in the 73rd section of that act say that 
without the perroisBion of the Master in Chancery no 
notion Aall be brought against the company or any 
person who is sued as a oontilbatory uieieo^ they 
must, conceding that the word *■ actien** extends to a 
scire fiwiaa^ be understood to q»eak of actions brought 
against a contributory befvre the Incorporation or c<»n- 
plete registration of the oompany. The 66th section vi 
the Winding-up Act enacts, ttiat except as is by tiril 
act expressly |ffovtded, nothing in this act contuned, near 
any petition or order under the same for the diaBolati<a 
and winding-up or for the winding-up of any company, 
riiall extend or enlarge, diminish, pngndioe or in any- 
wise alter or affect the rights or remedies of creditois, or 
other peiBone not being contribntories of the company, 
or tiie r^hts or remedies of creditors being also contn- 
butories, but being creditors of the oompany np<m ■ 
distinct and iadewmdent account, whether a^inst the 
company or against any of the eontributonea of tiie 
same, nor the rujfats or mnedieB of the oompany uainst 
any contrlbntorwi or other persona, nor shalf alter or 
alnct any eontraets w oigagementB entered into hy or 
with the company, or any person actingonbehalf of the 




This appears I 

enacts that ** no suit, action or other proceeding In taj 
ofte Nicy's mpetior oonto Ac. ihdl be institiM 



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THE JURIST. 



or brought or proceeded with hy the official manager, 
whether against a contributory of the oompany or any 
debtor or other stranger thereto, but with the leave or 
according to the general direction of the Master &c., 
and that no such action suit or other proceeding shall 
be proceeded with if the Master shall by writing under 
hia hand direct that the same sliall be stayed or dis- 
continued" &c. The only object of the 7Srd section 
was to enable the Master to ascertain the debts of the 
Company, and it accordingly stops all actions for liqui- 
dated debts until proof of them is made; and when the 
debt is disputed in amount he may direct an issue to 
ascertun it under the Olst section. Here the amount 
of the debt has been ascertained by a judgment wliich 
it would be unnecessary to prove. \_P!att, B. — By the 
74th section the proof of debts is to Im the same as in 
bankruptcy, and in bankruptcy yoa piOTe a jndgment- 
debt.] Yes; but merely by production of a copy of 
the record. (AldenoR, B. — If yon are right, it would 
make wild work of the equities between the parties. 
Where the affairs of a company are not before the 
Master in Chance]^, you have a tight to have your 
debt aatiafied out of the assets of any person who either 
is a shareholder in the company for the time being 
or has formerly been so; but then you are bound 
to exhaust the one class before you go to the other — 
a course which no doubt may in particular cases be 
productive of very grievous injustice, but was probably 
mtended to prevent embarrassment to creditors. But 
when you have got the case before the Master in Chan- 
cery, who can take all its equities into coDsideraUon 
and con make calls for the payment of your debt, he 
may in hia discretion make those calls not on all the 
diueholders but on that class who oiwht equitably to 
be compelled to pay them. He thererore can do com- 
plete equity between the parties; we cannot, and con- 
sequently it is reasonable that we should not interfere.3 
Courts of law are bound to administer justice and con- 
strue statutes by fixed rules, and have no right arbi- 
trarily to drive parties into a court of equity. It is 
sworn in the present case and uncontradicted that this 
Company has no assets to administer. [^Alderaotit B. — 
They have at least the property of the person whom 
you want to make pay under this execution. You are 
asking your debt from one shareholder when you have 
a rieht to be paid by all.] Before any effectual pro- 
ceedings eontd he taken in Chancery, both he and eveiy 
other solvent shareholder may have left the country. 

Pabke, B. — This role must be discharged. The first 
4^oesUon is whether since the 7 & 8 Vict. c. 110, execu- 
tion in lieu of a suggestion or scire facias can issue under 
circumstances like tiie present, and if the Court of Com- 
mon Pleas in Peart v. 77te Umvenal Salvage Company 
were right in their decision as to the effect of this statute. 
The contest there was whether under the 68th section 
the proceeding by scire facias or suggestion on a judg- 
ment obtained against such a company as this, was a1)0- 
lished only in case of execution sued against the com- 
pany b^ shareholders in it; on which that Court decided 
according to what I take to be the true construction of 
that section, that it does Aot apply solely to that case. 
The 68Ui section is that ** in the cases provided for by 
tills act for execution on any judgment, decree or order 
in any action or suit agunst the company to be issued 
against the nerson or against the property and effieets of 
any shareholder or former shareholder of such company, 
or against the property and effects of the company at 
the Mtt of any tnareholder or former tharehotder^ in 
aatisfaction of any monies, damages, costs and expenses 
pud or incurred by him as aforesaid in any action or 
auit against the company, such execution may be issued 
by leave of the Court, or of a judge of the court in 
which such judgment decree or order shall have been 
obtained;" and the contest in the Court of Common 
.Fieaa was whotiier tiiat section was to be confined only 



to the remedies which shareholders bad ag^nst the c« 
pany. Ko doubt according to the true rules of o 
stmction, tile expres^on ol ths tuit of any shm^ 
or former $hareMder must refer either to all the so 
cedent clauses or only to the last one: the Coorl 
Common Pleas properly- said if it referred to all thei 
tecedents the sentence would be absurd, because; 
power is given to shareholders to bring actions agij 
the company ; that such & power could not be cres 
by this section, and consequently the words wli 
I have rf»d must be taken as confined to the Z 
antecedent. There is however this apparent sbsurdi 
in applying that clause to the last antecedent one, r 
that those individual shareholders who have recorei 
against a joint-stock company must apply to tbeCoi 
for leave to issue execution. That would indeed 
the ^ect of sudb a coastmcUon if its shareholdenb 
power to sue tiie company, but according to the SI 
section taken together witli the 68th, the mesoiiw 
the Legislature, although they aay that the sbarebolf 
who has been compelled to pay the debt of the cm 
pany may recover against the company, is not tl 
shareholders shall have an action a^nst the oompii 
and execution on it, but that their intention was ti 
if one individual be called on to pay the debt of t 
company he shall have compensation irom them 1 
means of execution granted with the leave of a jndi 
That construction will reconcile the 66tb, fi7M «j 
68th sections, and is the true constraclioo of u 
act. The result therefore will be tliat the CStb se. 
tion does not apply to a proceeding bysBharehoMt 
merely, but to all cases where a creditor W w 
Company, and who has thus now a direct remedy n 
his deb^ as the Court or a judge is empowered to grw 
him execution. Under the former act 7 & 8 Geo. ^ 
c. 46, he was obliged to have a scire facias, which hj m 
experience we know to have been an inconvenient pre 
ceedmg. Then the present statute gives a discreUon t 
the Court or judge to determine all questions wluc 
formerly would have been determined on scire fta* 
vix. if the person against whom execution is "*™ 
shareholder, which they may decide according to tim 
discretion on affidavit, or if necessary under tteir g«w 
ral power of granting an issue to try it ; and thM flU 
cretion must be regulated with the view, mI*"*^ 
equitably the party ought to bo called on to pay, w 
whether he is a shareholder liable to contribute to w 
the debts of the company. Then as to execution a«f« 
shareholders there is a dutv imposed on the creaw 
by the 66th section— he may have immediate e3=«°'*^ 
against the property and effects of the company wiMj 
any restraint, but when he wants leave to aae anrtw 
party it shall only be gnmted on the condition oia 
having first used due diligence to obtain k".'"*?^ 
out of the property and effects of the company, lo 
case the Court may permit him to proceed 
property and effects of the individual aharehoWen^ 
that in administering the powers vested in tbem by » 
68, the Court will always have to consider ii aw 
diligence has been used to obtain satisfaction t^rzi 
primary fund. This statute expects tiiat the compsg 
will, as they clearly ought, pay their debts ont or^ 
property of the company; and the Co*"* "h-b 
care that individuals an not compelled to psjr tnewnu 

debt of a creditor in the first instance, "ntiJa"'^ 
gence to obtain it from that fund shaU have 
without success. Previous therefore to the li . 
Vict. c. 45, and subsequent to the 7 & 8 Vi'^^^^JvC 
Court always endeavoured to be perfecUy "t'^Bcettf 
due attempts had been made in the firat ""*jJigj , 
have execution against the effects of the conipsny. ^ 
the 11 & 12 Vict. c. 46, puts an insolvent "ffXliu- , 
different position, and duvets its affaifs ^ ^ r^t^ , 
stored und^a Master in Chancery, who is 
efi^ota of tiie compainr and have power lo eau 



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107 




bafiriinlpenonUaUeto eontrilnite in order to compel 
hat to eootnbate, tai thai provide a fund for the pay- 
■oAoC the ftrtnetsUp debts. If so we must see what 

Sfbe eomtnctiou of the 73rd section of that act ; and 
m cSect «{ it is, that all persona who are ^editors of 
im h— lrot company dull instead of saing the com- 
" ' in the fint iutaoce prove their debts under that 
~e, auLQina obtaia pajment for it through the 
1 ol (klUstn in Chanceiy. That mode of ob- 
f H^Actioa for snch debts has been substituted 
jy tt at Mote for the direct remedy Riven br the 
*^»roBf>titfl«tihoald prove abortive thu Court 
i in the exadit of its discretion permit the ereditor 
fRKeed dinetl? igunst the persons liable to eontri- 
"e to paj the dcbu of the company. We will there- 
■ excrotnr^KntioQin aUowiDg such erocution ; 
, we thuik (hit in the meantime, by the true con* 
■ctioB rfthe 11 & 12 Vict. c. 45, so long M there ia 
maaoBiUepncpectof obtaining payment by means 
„ jft MM juBoy, it H onr duty to prevent individual 
anfitev boK olltd on to make good the debts of the 
r. We ought thenfore to stay proceedings in 
■^a aemtion has been issued out against 
aiiderflich circumstances, and to prevent 
«>m iariij u that for which the present applica- 

^tajw^C i, MDciirred in this judgment. 
_Aam w, R-1 un pf jj^^ game opinion. The first 
fallj discuased, and I have expressed 
y S" — " ""^ «nne of the argument. As to 
™»«, ita dear fliat this party is not entitled to pro- 
"W^I^Mt the ihiKhoiaera of this Company, because 
„_v yy » not under the circumstances of the case 
■Moae dii^ence to obtain his debt from the assets of 
T* It ■ dor that if be is in a position by 

I r 11 t ^^^^ 
^■™T« t»e Cant of Cnancery, we have power to 

*e poceediBgi unta he does. When he does 

fc^^-SC'?*"*^ **** Company 
• '"**aal manager; so that he has a 
^TJ* P 'B^'wt a fund „p by the fu nds 

Z ri!^ " P^irlionihe wants to proceed ag^nst 



- o 

-3 



"^f'^re ^en' nnjost and against 

wJ^T^Sf"'[*^'' 7 & 8 Vict. c. no? if so 

wopany, he could be considered to 
fllL^.; iSP^ obtain his debt unless he 
7~tZl izil ^ plain straightforward course 
"'"'^ocs that without success then 

PlA lt,fr--Imoftlt, same opinion. I think this 
!£[?i*«1?SL**°'"*''''*'y to Company within 
IJtllii* Jlluii?' interpretationdause 
•* "•""^"•""'ttarai 18 included every member 
. ™ other persona liable to contribute to 

aaoi pertvhere dearly falls within this de- 
mtiiMm Tun tie 73rd section says that no ereditor 
«0tfaffjpanuiUvithontthepermisuonof the Mas- 
Itrm Cuoenjfimg any aoUon against the company 
mmfOMatdu contributory thereof, until ^ter 
jmictAe^bt be&re the Master. It seems to me 
Sat thaftoteediag is really in the nature of an action 
iflg iff; for by the 7 & 8 Vict, it is put in the place of 
a Kin Udu, wtucb is an action ; and it does not follow 
flat beooK the form of proceeding ia changed, the 
MtBif (^thf thin? Is changed. I therefore think that 
tfeaao vtuHi; EotI go higher up, for I ray thatpro- 
MdiHT BB tjo^tnt is within this act of Parliament, 
^Mtberr Ota been no permission of the Master to 

AtCmti^^^ coK war amy rvofmaUpontf 



CROWN CASES RESERVED. 
COURT OF CRIMINAL APPEAL— HiLAav Taau. 
{^Bt/on Lord Dbiimak, C. J., Parks, B» Alderson, B., 
CoLiVAK, J., CoLBRiDOE, J., and Platt, B.] 
Reo. v. Wynn.— Jan. 20. 
O^eet agamst the Pott-cffiee — Secreting LeUtn^Lar' 

eenw—n WUl. 4^1 Vict. c.36. 
A. wuindiettdfor tttaUngTwoPoHLattmrtinthePoat- 
officet wAers he wom tmpinifed a» a Servant* There wat 
alaa a Comi dUuyiiu mm with uereHng ike LetterSf 
widn-r WiU,ASi\Vvi,e.2a. TheJuryfmmd UuU 
the Priaoner^ havh^ eommiUed a Mittake in the avrting 
of certain Letter* in the Po9t-o/^e, accreted them^ in 
order to avoid the evppoeed Penalty attached to the Mis- 
lake:— Held, that thit teeretiag uxu within the 26tk Sec- 
tion of tie Stattttey and thtU a Larcenvaleo wat proved. 
The prisoner was tried before Piatt, B., at the Central 
Criminal Court, on the 23rd Aagua^lSiS, on an in- 
dictment charging him with stealiog, whikt employed 
in the Post-office, two post letters, conttuning one half- 
crown, one sixpence, three postage stamps, and three 
sovereigns, the property of her Majesty's Postmaster- 
General. He was employed in the Post-office, and his 
duty was to open the bags brought to the particular 
table at which be was placed, take out the letters, and 
separata them. The Scarborough bag, which oontuned, 
amongst others the two letters described in the Indict- 
ment, was bronght to his table. He opened it, took out 
all the letters, and put them on the table before him. 
Twenty or thirty bags were opened on the same table 
by the prisoner at the same time, and the letter bills of 
the several bags were by him spread before him on the 
table. It then became his duty to separate the regis- 
tered letters and unpaid letters from Uie unregistered 
paid letters, fold the registered letters in the biUs, and 
place them in a drawer. In the course of this sepa- 
ration he put two of the unregistered letters on one of 
the letter oill^ and some of the registered letters in tiielr 
respective bUla in the drawer, from which he afterwards 
gave them to the regiater clerk to cheek the blUa con- 
taining them. He afterwards put the rest of ttie rois- 
tered lettetB in the drawer, and carried them, when col- 
lected, to the register clerk. When he had done so he 
returned towards his table, and went to a water-doeet ; 
he vras observed to hold in his hand what appeared to 
be a bill folded over letters; he was followed, and after 
he had placed himself, with his breeches down, on the 
seat of the water-closet, he was observed to put 'his 
hands between his legs. He was immediately taken 
into custody. On his coming from the water-closet, the 
two letters, sealed and unopened, laid on the paper, 
were found in the pan. It appeared in evidence Uiat 
if, through n^lect, the letters were not ooooratcly 
sorted, the person guilty of such n^lect was liable to 
be punished. The jury found that the piisoner, hav- 
ing committed a mistake in the sorting of the letters in 
question, secreted them in the irater-closet in order to 
avoid the supposed penalty attached to the mistake. 
Upon this verdict the judgment was respited*. The 
26th8ectionof7Will. 4&1 Vict, c.36, enacts, "that 
every person employed under the Post-office who shall 
steal, or shall,/or any purpose wAatetKr,embezzle,secrete, 
or destroy a post letter, shall be guilty of felony." &c. 

Ballantinet for the prisoner. — ^This is an indictment 
framed under 7 Will. 4 & 1 Vict. e. 36, s. 26. In the first 
count, the prisoner is chained, as a servant of the Post- 
office, with stealing two letters ; the second count charges 
a secretii^. The jnty found, that the prisoner had se- 
creted th« letters for the purpose of evading the con- 
seqaenoes of his negligence. First, would this amount 
to a stealing? If not, the word secreting*' in th« 

* Tbe evidence on the trial is to be found at page 476 of the 
sboit-band writer's notes for the tenth seasioo, a copy of which 
vas seat by tbe oorporatioii of Londm to tbe jodgM. 



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THE JURIST 



statate wonM mot help the pioa o OTtiop. The words 
"steal" and *'Mnbezzla*' hare a definite legal mean- 
iiu;; not so the word **iecT«te," which must be con- 
^&nd as ejnadem generis. At common law, secreting 
would not amount to 8t«Jing; and, where a person is 
chaived with stealing a tetter in the Post-office, it most 
be t&en to be larceny at common law. (A. t. Stit, 
Jones, 1 Den. C. C. 188; audil. Priam mtd Goodaa, 
Id, 103), After these eana it weald be Bedeee tosmie 
Uu qneraon t^lneri eaos^ or raise the pomt, whether 
any benefit aeeraed to the prisoner hy the taking the 
kners; fivr H seema now to be settled, that any sni^poBed 
benefit would constitute a snfficient lucri oanaft ; and, 
undoubtedly, a sapposed benefit might here be stqigested. 
To constitute larwny, there must be a distinct taking 
— not a constructiTe taking only, but a taking aewmi- 
ing to the old notion. In this case there was no a^ka- 
latioa of prop«iy from the master; it was merely 
eonstroctiTe ; ana it would be extending the doctrine 
of larceny rery far, to htAA that this amo anted to the 
offence of stealing. Suppose the case of a servant who 
took a book out of his master's library, wittout pei^ 
misrion, for the purpose oS leading it, andj in naofaig 
1^ scaled it, and, in order to conceal the curewnrtanoe 
ftom lUa maater, aftanrards destroyed tiie boelE— Oat 
wovld not be lareeny; for, aoeording to the d^nitioa 
of larceny in theoaseof A. v. Prwett (md€h)odall,iban 
must not only be a takiugr without the colour or title trf 
uthority against the wiU of Uie owner, but a takimF 
with intent to retain ih« possesnon. [Pwi^ B. — If 
time be a count for secreting, how can any question be 
raised? The statute sariL^ **for any purpose what- 
orer.'* Lord Dmnum^ C. J. — How do yoo get out of 
the word ''seerete,** &c.1} They must be taken in 
oonnexion with stealing and embezxling. [^UlsrsoR, 

B. — " Any purpose whateTer.'* Lord Ihmmm, C. J,— 
We must construe the act of Pariiament bato^ng in 
mind that the (rfhnoe charged is one agunst the ^lak- 
irfRee. The word " secrete *' meets a reir common of- 
Isnofcl It does not appear from the finding of the 
iniT, fhat the prisoner, by seeietii^ the letter^ mtended 
10 uka away the domtmon of them. [CManii^ J.— - 
Ton must take the facts as they are : he put tbem into 
■ plaos where in a moment or two tiiey would have pass- 
•a away. AldmwMy B. — Yon do not ar^e, I suppose, 
that he put them where they were found with aview that 
the letters should be found again? The act 43. Geo. 3, 
e. 81, B. 4, provided a^^nst offences of this kind, done 
" in expectation of gain or reward;" were that ^tute 
now in force, an argument might, perhaps, have been 
raised upon it; Uioiwh to escape detection would, X 
Aink, be snflicient gi£i. Pnrke, B.— Thmls the ease 
of a man who destroyed a horse, by oanMt^ Mm to fiUl 
down a eoal-plt, in order to protect Uw prisoner by 
the destniction <h the animal. It was thought, that a 
benefit to a friend was sufficient lucri canisft; and, 
surely, in ^s case, there was a 1}enefit in the contem- 
plation of the prisoner. The only question then is, 
whether the putting the letters In the water-K^loset 
amounted to a taki^ and sscreting? Lord DmmmUy 

C. J. — Whether there was a secreting or not, is a 
question of endence.3 The jury have found a special 
verdict. [Pariv, B. — Suppose a man takes a chattd 
from his master, and loda it up in a box with intent to 
deprive his master of it, would that be larceny X] Yes ; 
but in this ease It does not appear bat that it was 
Intended by the prisoner that the authorities should 
find the letters. The ftet is^ that they were found ; 
and e xt rawrdinary means are posMssed in the Post- 
oflSee tff diseovermg things lost or emeealed. [OUe- 
fiilg»j J.~Snppoee the prisoner intended tiiai they 
riiould find them next day? Would not secreting'* 
the letters for an hour be enough to bring the of- 
ftnoe within the statnte % Parke. B.— It is dear that 
there was a aeeretii«. Laid Dtman, C, J^-^kad 



Aat is my opnion. Coteridge, J.r— And mine. A 
AMI, B. — I have a strong opinion that it is stealing 
The indictoaent ought to state for what ^potpoi 

Srisoner secreted the letter. No purpose is stati 
le foce of the iodictmoit. QLord 2>e»»<m, C. J.- 
have not the in^etmant bere.^ Where the wa 
an act of Parliammt are extremely genanl, tbn 
words in the iwUctment ong^tto be asstrictaspo* 
Fittua latet in generaUbna. {PkOt^ B.— If tiun 
defect in the rword, your xaned^r is a writ of a 
It ia submitted, that this Court will look at the n 
record. [Poritf, B.— We have only to ileeiti*, 
ixtints reserved. The racord is not here.1 Itisaq 
tioB of fiut, whether the prisoner intended to m 
the letters; and that fact la not found. [OoAmoii, 
If the mry had said that he iiad secreted them for thcj 
pose of dutroying them, that would have been esot 
your argument is^ that that fiut is not found. Pi 
B. — The only question there can be in this case ti,| 
ther it is larceny to drop the letters for the paipo 
secreting tliem. There was anaeportavit the momu 
dropped the letters. Aldtrtotky B. — And whetha 
oreting, in order tiutthe maater should nem havsi 
again, and for the purpoae of covning his own ou^ 
dnct, is not lareeny ?3 " Secrete^ means to codom 
a temporary purpose. It implies that the tbiogab 
be found aewi. The finding of the juiy does not i 
ai^ intention permanently to deprive the master of 
property. It is submitted, that this is not a sai 
Weeny. 

CUurktomt for the Crown, was not called np<m by 

Court. 

Lord DsmuN, C. J. — As to aecretiiw, 1 \am 
doubt on the subject The act of Parbaraent u T 
clear. A moat important trust is reposed in all {Md 
employed in the PosUoffioe ; and they are not w 
by the law on the same fiaotii^r aa osmmw tkw 




Jonm., N. S., M., 117), eMifirmed in error, ^ewi, i 
where, the statute says for any purpose wbatsoen 
it is unnecessaty to state any purpose. For F 

fose the letters were secreted is, therefore, iauasten 
am also clearly of winion that a htrceny is p>ofi 
Wefiod a man m a private place takii^ lettm, an 
pins them for a purpose of his own, depnring 
of his property, putting it in a place from i™*0 
all probability it would disappear in a memeat , 
wanted to avmd the penalty to which he 
An asportavit took place the moment he rdsaieo 
hold of the letters. 

pAaxE, B„ Au>KBfK>v, B., CoMMUi, if Couia 
J., ooneoired. 

Plaw, a— The vroids of the statute, « ^ «?P 
pose whatsoever," ware olearlj meant to meat a em 
this khkdv-CbiMM«foii q^bM: 

Bbs. e. hxLm*-—Jtm. 20. 
P0eeattmiaiidlorriiUei(O. 

TkePatimtm^hewrnvM CjloivA A«4^^"' 
Fonrtem Ymtm ofAgt, 

The prisoner was convicted on an indlctmrai P 
fiirred against him at the Central Crfaninal Co°«V.^ 
evidence shewed that the prisoner had been tee pw* 
and that the agent was not fourteen 7®*","^piJ^ 

WM henmnnn n>«irrBd for th« onimon of the W™", 



conviCLea or tne onenoe-, me oonTicuuu - — ii 
Lord DamuiT.C. J.— We an of owaxon t6« » 
conviction ia good. — CnnMim i^trma. . 

• Sed q««.woaH.eta»_frfa,i«H*„?f!^*^ 



CMBn, . _ .. 

appljhere? (Vide 1 Hale, P. C. 25, 27 ; 4 



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THE JURIST. 



109 



COURT OF CHANCEBY. 

fin Rnu HiOHRM Pbiikx Auhbt v. SiBAwakr— 

/«!. 26. 27, 20. 30, and JW. B. 
hjmlim-Unniiiiiii Workt—Priwmejf D tta^ptm 

Iff if-^ tr Cmfmr cf tmr Worki of JAUruture, 
^aiyW Same* kai w ntcA JVori»,jo long atjktgr r&- 



ItiaMt of Proper^ 
of MM Cb«r( ^ainit 



lAlii Ii'm f II Ml riij'mirfinii oj 
«vPnii,M(A«M^aiy Tlilb I0 Ale WoHta.Utf 
mtmhmjrmwdiiAkig mm LUt or dlsfer^fnv Cb- 

WhKt^?mtmimoftk*Subj*ii-matUr a&nrt (0 
fiUMv^iMled in a firfocA 0^ TVwf, Confidtnee, 
trOiM^^Omi Witt imterfere Ijf InjmUtion to 
^mmUNi^ettim^nuk Stigtet-maUer. 
■Ihhimi wkiA P o muim ijf m tama tf a 

• ^tm^mlkmnGromtdof legal Rights ar^ dif- 

ifaMiliaifttt Omt i* appeM to, a$ ittCamof 
MmiifMtOmfiaiet, orComtraet. 
ttb w 1 HMil of the motioD, bv way of Appeal 
ftn tkiUarf Knight Brace, V. C., reported ante, 
fktf. Ilifittgfttie ease an there fail; sUted. 

t^m nh m l l, M, 8mma Warrm, and <SnttA, 
fc«PfMriifihemotioii to diseha^ the iDjnnetion. 
j^M Mt jbetfl^The only part of the injunction 
viedi v( Ntk to ^oolre u that which restrains 
fl^age fnaitllinrorin any manner pnblishinff, and 
wmtf OBlB^ the ocicriptiTe catalogue in the bilTmen- 
j^i ^ or i^F woik bai^ or porporting tobe, aoata- 
P|M*«f tttNlttdinn. The ease made br the bill 
Hp*— 'tf tki ttduogs ware made by the Prince 
Wi Myitj ! then is no attempt to iden- 
Ig^adntBuebf the Prince; the injnnetion. 
OMMn, otaidi to nme parta of the eat^ogne in 
I A PriwbM no 1^ interest. There has been 
t « ]»ifiaiioD of ^ese etchings as in the case of an 
.tg **«MTitirte a patent. It is stated in the 
gWMtrfr»Mll Wthe etchings haTe been hung np in 
••Jf'^^'Li It Windsor ; and moreover, that some 
^wWajmsented to pri«te friends of her 
^T"fc?rmc6— one to one person and one to 
_ .[WQanceUBr.— Do you mean to contend, 
jy ^^'^^ff"*' imparts liis knowledge of an inren- 
Parents the ralidity of a patent 
^■"'If l'^J wt mX\ We concede the right of 
l»^"*J"V"«rflhe etchings to be in the Prince; but 
ya psHidiiiMt this catalogue, we do not 

^!?^\ in; right in the Prince. The law of 
gWgMBd MBtpreTgiit a party obtaining knowledge 
WW tk Bflirain of perceiving these etchings, from 
MMytt woowledge, and from conveying that infbr- 
^f^* person or to other persons. It is 
toil, br 90 doing, you are making public 
■P**' Iw «ne without hispennisnon. If this 
'H^ipraent, to wliat an extent might it be 
m fwblie press could not properly communi- 
!EI«tior Dorements of a person unless with his 
■» aOur.PrUehard, f2 Swanst. 402), Lord 
"■Mf (13, expressly statea that the only ground 
u injonction could be sustained against 
^^■if Ik letters was property in the letters, 
ui ii Inddiip'a Isiuniage we may say, Has the 
u ^ ibeti of which ute Court can take notice, as a 
Mtfdrilpn^;, wtueh it Is bound to protect?" 
otitterade ssy, *< Yes, because privacy is essential 
t>Aiii^ofpn>perty:^ this is the fidlacyof theirar- 
giM. dmDt the owner of anything may use 
fnjMttiD his power to prevent that thing being 
M If Mkr peaoD, bat If that other peiwn mm i^ 



the owner can have no right of property in the notion or 
idea created in the mind of the person who has seen it. 
There is no analogy between such a case and the caw 
of letters from A. to B,, in which the right of property 
is in A. So, in the case of Abermth^ v. HtOeJtmaont (3 
Law Joam., 219), tlie defendant was nnng the very 
words of Mr. Abenicthy. The qaestitm was, whether a 
lecturer had any right of property In his lectures, whldi 
bad not been reduced into writing before being deli* 
vered. It was evidently considerM that the case wm 
weak upon the original bill : for it was amended, by 
stating that do person was allowed In to hear the lec- 
tures, except upon payment of an admission fee, and 
upon an implira contract that no public use was to l>e 
nude of the information to be derived. That case is 
not applicable to the present. Suppose a painter, by 
bis ar^ descrilMS a particular scene in a poem, and 
thereby awakens the same ideas as the poet, could the 
artist be restrained T No doubt, if a person printed the 
poem, he would be restrained. The difference is this— 
the poet has a property in the words, the painter in bis 
pdnting, bat neither of them in the ideaa crcatad by 
their works: a Mulptor might embody in marble the 
same ideas as thoM created by the painter. The Vio»- 
Chanoellor rested his judgment entirely upon the right 
of a person to retain his property in a state of privacy : 
this I admit : but I say there Is no property in the 
ideas created by seeing the etchings— the property la 
confined to the etchings. 

RoU. — ^This injunction, so &r as it relates to the 
catalogue, can only be supported on one of two grounds: 
first, that the plaintiff has a property in the publica- 
tion tliat is restrained ; or, secondly, on the ground that 
there was either an exprsH or implied contract that 
the defendant would not make any public use of the 
knowledge which he has obtuned by having seen thoM 
etchings. There are distinct properties, independent of 
each outer. In the owner of pwtndta: fiiat, there is Uie 
right of property in the caavM; sectrndly, in the form 
that adorns the canvas; tliirdly, the knowledge of tha 
existence of what he poss es se s . Now, suppoong that 
the owner of a collection of pictures allows the public 
on certain days to view his coUection, and by this means 
one of the visitors acquires a knowledge of the paintings 
the same ss the owner, has not such person, in the 
absence of contract to the contrary, a right to make use 
of that knowledge t No doubt he would be restrained 
from using the form, but not from describing the attri- 
butes created by the form. There is no greater right 
of property in the knowledge, in the owner of the col- 
lection, tiian in any stranger who may have had acocM 
to them. Neither would the case be altered had tiio 
knowledge been aoquired by viewing a portnut that 
had been stolen; it is clear, that thoagh trespass might 
be brought for the entry, or trover for the chattel, 
neither form of action could be brought in respect of 
the knowledge ; nor will a Court of equity, in the ab- 
sence of contract, interfere with the use of that know- 
ledge. Knowledge is the gift of God, and God alone . 
can deprive the possessor of it. None of the authori- 
ties that were cited in the court below will be found 
to interfere with my propouUons, if the distinction 
between the property in the thing and the property in 
the knowledge oe observed. The cases of unprinted 
manuscripts, dramatic performances, and lectures, all 
proceeded upon the ground of the ideas being commu- 
nicated by words, which were the property of the 
writer or lecturer : if the subject has been reduced into 
writing, then tiie author lias a copyright In the work. 
This was the caw of MaetHn v. JZieAanbon, (Amb. 
694). Murray v. Elluton (6 B. & A. 607} was the 
converse of the last case : there, the play of " Marino 
Faliero" had been published, and the action was brought 
to recover damages for the iignry done by representmg 
it vpoutbestage. It was not aigiwd in that mm, thM 



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THE JURIST. 



the action would not lie, on the ground of the play* m 
■cied, being an abridgment, bat upon the ground, that, 
the knowledge having been acquired from the book, 
the ideas thereby created might fairly be represented 
upon the stage. Tipping v. Clark (2 Hare, 383) pro- 
ceeded upon the ground of an implied contract between 
a clerk and his employer, that he would not impart a 
knowledge of the contents of the account-books to other 
petsoQs. This brings me to the qaestion — has the de- 
nndaiit's knowledge been acquired under any implied 
contract that he would not make any public use <h it? 
To know upon what ground tiiiis question is to be di»- 
cnaeed, it will be necessary to have your Lordship's 
decision as to the admisBibUity of certain afGdavits 
which were filed, on the part ot the plaintiff, after the 
injunction was obtained. These were rejected by the 
Court below, but it will now be attempted to introduce 
them. \_Tke Solicitor-Gerural.—The Vice- Chancellor 
rejected them, on the ground that there bad not been 
sufficient notice given of plaintiff's intention to read 
them.] The Yice-ChanceUor, after argument, rejected 
them, and the judgment pro(»eded upon the exclusion 
of that evidence ; and the plaintiff nas not appealed 
from that judgment. The rale of the Court Is, that, if 
a party move tor an injunction, which is refused) and 
Uien come here, they may shew other grounds for tiie 
injunction, as upon a new motion ; hat where the in- 
junction is ohtamed, and the defendant comes here to 
discharge that injunction, it cannot be supported upon 
fresh evidence: it is then strictly an appeal motion. 
{Edicards v. Jone$, 1 Ph. 501 ; SUlon t. Lord Gran- 
ville, 4 Beav. 130). 

Lord Cuancbuok. — If this is an appeal motion. I 
muBt take it upon the erldence that was before the 
Court below. 

The SoHcitor-Qtnerul and tTitniM, contra. — When the 
original bill was filed, the precise manner in which the 
copies of the etchings had come to the possession and 
knowledge of the deiendant was not known, and it was 
only alleged generally, that they had been snrrepti- 
tionsly obtained. The injunction was obt^ned upon 
that statement : afterwaTos the hill was amended, by 
stating the mode in which the defendants obtained the 
copies. The defendant, by his answer, only ignored 
the &cts introduced by way of amendment ; and these 
affidavits we now desire to read, to prove how the etch- 
ings came to the posaesBion of the defendant. We rely 
UDon the case of Jeferys v. Smithy (1 J. & W. 298). 
Tois is not like Edwarda v. Jonea. There it was to 
Terify a matter of title ; here it is merely to prove the 
existence of an implied contract. 

R6U. — This is not like the case of J^&ryt v. SmiAi 
there the injunction was moved for after answer, and 
the answer did not notice some of the all^ations in the 
bill. Here the iignnction was obtainea ex parte on 
tfie orl^nal bill, which was afterwards amended by 
order, without prejudice to the injunction; but that 
order cannot inw^ the injunction. The othnrude say 
that the affidavits are not produced as evidence of the 
pldnUff's title; but, I submit, that is not so: the very 
argument on the other side depends upon the question, 
whether the etchings, which were shewn to the de- 
fendant, were the property of the person who shewed 
them. I submit, that ufidavits m evidence of the 

glaintiff's title cannot be admitted in support of the 
ijunction, although the answer merely ignored the al- 
legations in the bill. 

Lord Chancellor. — I have no doubt whatever as to 
the practice in this case ; and by it I am bound to reject 
these affidavits. The rule of the Court is as has been 
stated by Mr.Rolt. The order for leave to amende 
without prejudice to the iinnnction, enables the plain- 
tiff to amend his hill for tiie general purposes of the 
mit, but it leaves tha injnnctim as it was. Ho doubt, 
if an injunction ba obtunod on u amended bUl, affi- 



davits in support of the case made by the original 
will he admitted, although those facte were not kn 
at the time of filing the original Mil; bat the esse I 
is, to support the mjnnetltm npcm the original bH 
AffidamU r^ected. 

Bolt continued hissrgumenton the motion.— No 
of privity, or of any implied contract, was made out 
tween hu Royal Highness Prince Albert and Um 
fendant. The injunction was not obtuned opon 
Round of any confidence being reposed br his Be 
Highness in Brown, but upon the gronnd thst si 
person raneptitioasigr obtained copies of ths stefefi 
from theprivate aparUnenta at 'Windaor. ^lm4Gk 
eellor. — lliere may be no pririty between the tnmat 
Strange, but suppose the facts shew that thm wh 
implied contract oetwean the owner and anaUurpvtoi 
That would not afieot Steange if be had no notue of I 
it cannot be treated as a purchase of a chattel; its 
knowledge acquired by a power given by God ; it ia G 
lighting my torch at your torch — yoa are nothing ' 
poorer. It has not been shewn, that, by any out 
of the printing trade, it waa a fraud for any of tb« i 
vauts to retain a waste copy. The case before the Vi 
Chancellor aimply raised the questioD, whether the 
of property in tne etchinga created a prepay in i 
knowledge acquired irom tfaoee etchings, irreqwotiTr 
any contract or confidence. 

a. Wturm^'Whem there is an^ doubt as to the le^ 
r^ht of a plaintiff, ^ur Lordship is in the eoiuta 
habit of rerudng to interfere by iojunctioD antil ih 
right is establish^] at law. (^SwHuuvecIe r. G^-ie, 
Phil. 164; Rifflgf v. Tht Great Wetttm Baiiwaji Gen 
paa^. Id. 44). It is well settled, that s petson may o1 
tain as good a title to an abridgment as Uie origin 
composer had in his work. {Saimdert v. Smiiit » 
parate report by Mr. Crawford, 1838 ; GgletJ. WHaet 
2 Atk. 141; Martin v. Wright, 6 Sim.297). Tbiotke 
side must contend that the composer of this oiw<^ 
has no title to it, and that the Prince has. It is w 
by the other side, that privacy is an adjunct to pn 
perty ; but, I submit, it is a mere imae^nary sdjotw 
\Chmiiikr v. Thoa^ptu^ 3 Camp. 80). what foimf 
action could be brmffht for a mere matter of pnncy 
The only form would be an action on the cmc— tlwr 
would be no allegation of property— there could be m 
allegation^ hut that it would be ofienuve to t^eigg 
tiff'. Such an action could not succeed; 
caw, 9 Co. 68. a.); it is for the pUintiff to shew tbrtt 
could. This Court will not interfere on the pomU 
private feelings nor even on the ground of a puDues 
tion being of a libellous nature. (SotOktif v. Sherw» 
2 Mer. 43fi). Vice-Chancellor Knight Brace, in di 
ciding this case, loet sight of the principles 
dence in pursuing those of ethics. [.He reiene'"' 
Mackild»'*s Uodem Civil Law, (12% iiote).J 

Lord CBANCBiuaR.— One part of the hijoactiwj> 
agamst the exhibition of the etchings ; and »e d^*: 
ant submits to that part of it. Now. the cstalogM" 
an announcement of the exhibition. Have yo"*"? 
stance in which the Court has permitted the sJi^m^ 
ment of the very exhibition wUich, it is admitteo, » 
properly restrained? . , ^ 

S. fiWlA.— The injunction not onlj 
ticular catalc^e, but any other which might be 
out. 1 Iff IL 

The SoUcitor-Gataral, Talfimdt SsqU ww *• 
Jataea, contra. . lL^ 

Solicitcr-General—We do not seek to fVV^J^^ 
injunction upon any grounds of public raorau or P 

feeUngs : we rely merdy upon the prin^P'^ 
law. First, that the Court of Chancery wiU >° 'J^ 
protect every one in the use of his property, ^ 
prevent another person from d<»ng an "U°7i.Iinn)- 
property, or from interfering witii the use of 
pwrty. Seoon^Uy.thatthaCoiirtrecogiua«»P<^ 



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Ill 




mwiqnUSAiA natten, and tKst incidental to that pro- 
late b the rigbt to mue tiwm pnblie, or to kMp tnem 
■ait It n pnfieetlj dear, flist tiie right of pnblica- 
■■b a matter that can beeoM: it has, in bet, a cor- 
fwl txHttoot^ whkh ia piotocted by the common law 
flTfifhad. {Dimaidtm t. BedMy 4 Burr. 2406; 
JHb-T. TV^, 4 Burr. 2378). We elaim no right 
ihnfBt; ia the catiJo^— w« only dum the right 
] ■ y J yl ; m the etchtnga, and, incidental to them, 
teiqjht <( naUng them pablie; and we say, the 
•Mine htafcns with and injures that latter right, 
ntfaa eitri tite eaaea of 7%e i>Ki« QitemuAtny r. 
IUh»«,(£Eaea,329); Popty, Carl^ (2 Atk. 342); 
*A9T.Skra()aiI,(2HQTr. 43fi); Thompton r. Lord 
gj— ■iiH,{&ab.737); ^t. Pritdtard^ (2 Swsnst. 

P«mI t. PUppty (2 Ves. & B. 19); Lord 

'y.Dwo, (1 B. \ B. 207); Abemetk 
(3 Law Joam. 219) ; 
(1 S.&S.398); OowttT. fFnyoftf, (1 3. 
" ; Mwy y. Jmet, (oU asp.) ; JfadbUm r. 



i,(tiliinp.); and repeated his axgnmente in 
Mot. (See ante, p. 49).] In MartUt t. 
_ iC^HD.], Aepuntiii^ had been made pobUc ; 
Lv^^ W, before the exhihidon of it by 
■tin, <9<lnd exhiUted it, oonld it be doubted 
thiaCittwild hsTe interftred? The other aide 
weae aboet bant this case by analc«y to invention^ 
ywBT knop threw ont a doabt whether they 
^■■■otjittwtii* em too high. It is an eTerr- 
■yaa cTwatiiit one inTcnta, and another finds the 
forottmnjand working the patent; but it 
— ^ » g* ^ wBtoaW for a moment, that, by the in- 
■MiariMgrtnldibMiwMge to that other indiWdual, 
■■■■ fa^h i^ of property. Is not thia ao, thea, 
- pnd«( of Uie mil d t If a work be pnbndked, 
*«»l«te«yon rosy abridge it; but if it he 
9M,jga hare na right eiOAT to translate or 
« •> then, Me 7oa to be at liberty to make 
J « tHalogoe of the contents? lUe then 
I « At oi^hiBl affidavits and the answer of 

^MopW been improperiy obtained from the 
tern, «syineiMofalirBa«i of trust committed by 
„ on waecf hii wirants ; citing Abenuthm r. 
™**»f.lwMpO, Bn$on t. WiMehead, (1 S. & 
ISfr- (2 Hare, 383), and Chief 
witoeft jffifement fai BridgiMn v. Or^en, 
(""" "'GwiBif Opinions, p. 64), to shew that a 
Mifr Mw^jDnsenod does not acquire any right 
rfy^ peftyttHBal] It is contended, that every p(M- 
iMar o f hwltjp baa a right to make that knowledge 
^nc- uMaiT Suppose a Mlhdtor obtains a kaow- 
"f ^ia in a gtle to an estate, eoutd it he 
o***""™ 4rt he hai s right to make that public? 
(CMnAi^ T. CKatoi, 19 Vea. 261). The other 
ade oB iaJ, tint there lus been a publication of these 
fllcU^ hj sn^e copies having been given away to 
jrfvafc frwi of the owneia; bat I submit, on the 
aafloi^ <it n< Dvke of Quemtbury v. J^Obeare, 
JUft r. Sidarimt, (nbi anp.)» and {Wfaon v. fTo' 
dim, flT.B.«5), that thia fid not amount to a pnbU- 

Ajto^ Serit—Priracy is not a necessary attribute 
(/iBinpertj, bntotiljofaome; someHmes, indeed, it 
pmH'rtf nly ^lue- £ven Mr. Justice Yates, vrao 
^Ih^ from the other judges, in MUlar v. TajftoTf on 
tb^kf<iius^(^ Veed wttti them all npon uie inei- 
ffi^KMi, namely, tiiat ao long aa an anUior re- 
fgffi las woiks in an unpublished state, he had the 
^^de i^ht to keep them private. The argument of 
%Afrt*^ would apply to the etchings themselves. 
CMftbtwd, that any person has the rifffat to drag 
liARtepablie the iroikirf another, who has thought 
■MrttAmsd it with obseuri^ 1 When once a work 
UftVM.'it is the right of the pnbfie to cenaon ox 




critidae it. I am asked vriiether an action on the case 
would lie ; and I reply tiiat it would, and that it ia a 
constant thing to have actiona on the case for new 
wrongs, and that it ia unneoeaaaty to have a precedent 
for it. In Ahemtthj^t eaie. Lord Eldon granted the 
injunction on the ground that thia Conrt would restr^ 
anyaet afleoting the value of the property. 

n^. M, Jamet reforred to Lord Hlenley on Imnnc- 
tions, (p. 876}^ where he vefota to the case or )Cr. 
Webb's unpnbliahed Convejrancing Precedents haWng 
been stolen, and an ii^onetion Mring been granted 
iwainat puUishing them; and contended, tliat if the 
thief, instead of publishing them in extenso, had pub* 
lished an abstract of them, which might have beoi 
even a more valuable work, the Court of Chanceiy 
wonld undoabtedly have restruned the publication. 

[In the coarse of the argameota, the Lord Chancel- 
lor several times observed upon the foct of the catalogue 
holding forth to the public that which was admitted to 
be iSalse^ namely, tliat every purchaser of the catalc^e 
would be presented " (hjf pamission J" with a fiu 
dmile of the autogmph of nther her Uiyeaty or the 
Prince Consort.] 

Bimdlj in reply.— A folae or Inaccnnte statement 
in a publication does not give thta Court any jnriadlc* 
tlon to restrain that pubUcation. We have a copyright 
in this catalogue, and if any person republiahra it wa 
would hare an action at law. No anawer has been 
made to our argument, that this inj auction is too ex- 
tensive, the Prince beii^ a stranger in law to a great 
nnmber of the etchings. As to some of the Prince's 
etchings, his Royal Eug^ness can have no property in 
the idea, for some of them are but copies from old mas- 
ters ; take, for instance, No. 49. ** Heads of £aglea, 
from a painting of Ganymede.** [Lord Chaaeelk^.— 
Has he not a right to the copy, and that no person 
ahall copy that copy f Suppose a person copies a land- 
scape, ia he not to uve an actual title to the copy from 
nature?] That would be an original work; the mind 
wonld take some objects and reject others. I admit 
the fall right of an author to his unpublished work; 
but I submit tliat it Is questionable whetlier that right 
woald extend so aa to prevent an abridgment of an un- 
published work. [Lord Chancellor. — That was Aber- 
nethy's case ; the Court came to the conclusion that 
there was no publication, only a qualified pubUcation.1 
I sabmit that here tiiere has been a pubhcation; andl 
further, that etchings come withio the meaning of 
material productiona, and not within the meamiig of 
unpnblished worics. 

jff&.8. — LoiU) Chahcbllob.— The Importance which 
has been attached to thia rase arises entirely from the 
exalted station of the plaintiff, and cannot he referred 
to any difficulty in the case itself. The precise foets 
may not have occurred before ; bat those facts clearly 
fall within the established principles, and the applica- 
tion of them is not attended with any difficulty. The 
right of the plaintiff to an injunction to restrain the 
defendant from exhibiting, copying, or in any manner 
publishing or parting with, or diaposlng of, any of the 
etchings in qneation, is perfectly clear from the focts of 
the case, and is not now disputed by the defendant; and 
the only question I have to decide i^ whether, tiiia 
right being so established and admitted, the defendant 
ia to he permitted to publish the cstalwue in question, 
in which he announces Ms intention of exhibiting the 
etchings which he is so restrained from doing, and in 
which ne announces to the public that *' Every pur- 
chaser of thia catalogue will be presented (by permis- 
sion) with a &c simile of the autograph of either her 
Majesty or of the Prince Consort, engraved from the 
original, the selection being left to the purchaser.** 
Now, as permission, so to accompany each catalogue 
sold, necrasarily implies permission to sell the catalogue 
itsm^ tha case is complete of an intention to sellan^tora 



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fidM rronsentatton, that tha whole tmuaction is not 
only with the Imo^e^e, but wltli the uprobatioa, of 
the pluntifF— a ftJaehood which conid only have been 
nsorted to for the purpose of imposing on the public. 
Now, as all manufacturers are, as a matter of course, 
nstnined from selling their goods under similar misre- 
presentations, tending to impose on the public, and to 

Erejudice othets, it seems singular that the Court should 
B asked to dissolve the injunction wliich prevents the 
defendant from selling or publishing this catalogue. 
It is true, however, that as the injunction extends to 
restrun the defendant from publishing " any worlt, 
being, or purporting to be, a catalogue of the etch- 
ing^' it 18 to be considered whether, under the cir- 
cumstances, the defendant has any right so to do. 
In oottsidering this, I shall not r^ard the faet, that 
the defenduit submitB to the iqjanetion against exhi- 
biting, publishing, or porting wiUi, the etchings de- 
scribed m the catalogue; and that the other defendant, 
the author and compiler, and joint proprietor with the 
defendant, of the catalogue, as the defendant states in 
his answer, has submitted to the whole of the injunc- 
tion, from part of which the defendant aslcs to be re- 
lieved. Let it be supposed that an injunction were 
now asked for, in the terms of the injunction sought to 
be dissolved, the case would stand thus : — The affidavits 
filed before the answer shew that the etching in qnes- 
tion were the works of the plaintiff, and retained as his 
private property, not published or intended for publica- 
tion, some of them only having been given to private 
Mends; that the collection described in the catalogue 
eould only have been made br imprndona surrepti- 
tiously and improperly obt^ea ; that the "catalogue, 
and the descriptive and otherremarks therein contained, 
oonld not have been compiled or made except by 
means of the possHriim of the several impresrions of 
the said etchiogs so surreptitiously obtained as afore- 
said." By the last affidavit of Mr. White, a fact was 
made known to the defendant, that upon one occasion 
some of the plates were sent to a Mr. Brown, a 
printer at Wmdsor, for the purpose of having some 
impressions taken for private use, and that the 
plates and all the impressions so ordered were re- 
turned by Mr. Brown. The answer does not in any 
manner question, qualify, or vary the esse so made, 
bntsimply states, the defendant did not know or believe 
that the copies lud been improperly obtained; and 
that Judge, who was in the possession of them, did, as 
the defendant believes, purchase them of one Middle- 
ton ; but states nothing as to how Middleton obtained 
them, and states nothing as to Brown, so called to his 
attention by Mr. White's affidavit. The rrault is, that 
the case stated by the affidavit is not met bv the an- 
swer ; and the answer does not set up any tiue adverse 
to the case so made. But in this state of things the 
defendant insists thst he is entitled to publish a cata- 
logue of the etchings — that is to say^ to publish a de- 
scription or list of works or compositions of another, 
made and kept for the private use of that other, the 
pahUeation ox which was never authorised, and the 
possessimi of copies of which could only hare been ob- 
tained by 8urrn>titioa8 and improper means. It waa 
said by one of tne learned counsel for the defendant, 
that the injunction must rest on the ground of property 
or breach of trust. Botii appear to me to exist in this 
case. The property of an author or composer of any 
work, whether of literature, art, or science, in such 
work unpublished, and kept for his private use or 
pleasure, cannot be disputed, after the long line of deci- 
sions in which that proposition has been affirmed or 
assumed. I say *' assumed," because, in most of the 
cases which have been decided, the question was not as 
to the original right of the author, but whether what 
had taken place did not amount to a wiUver of such 
right; as, in tiie ease lettexi^ how fir tiie sending of 



the letter,— in the case of dramatic compottUra. i 
far the permitting the perfonDsuce, — and, in TXe 
of Mr. AbernethtTM Zoehmg, how w the oral deli' 
of the lecture,— had depriTed the author of any psi 
his original right ana property in question; wl 
could not have arisen, if there had not been such 
ginal ri^ht or property. It would be a wsste of I 
to refer in detail to the cases on this subject. If, t 
such ri^ht and property exist in the anther of i 
works, It must so exist excluuvely of all other ^ 
Can any stranger have any right or title to, or inti 
in, that which belongs exclusively to anotberl-sad 
this is precisely what the defendant clainuL altboni 
by a strange inconsistency, he does not cii^te < 
general proposition as to the plaintiff's right udf 
perty; for he contends, that, admitting the piiiati 
right and property in the etchings in question, ud 
incident to it, the right to prevent publication oi u 
bition of copies of them, yet he insists, that some ; 
soniL having had access to certain copies, (how obt^ 
I wiU presently consider), and having, from such coj 
composed a description and list of the originals, lie, 
defendant, is entitled to publish such list and desc 
tion— that is, that be is entitled, agunst the will of 
owner, to make such use of his exclusive property, 
being admitted that the defendant could not pnblii 
copy — that is, an impression — of the etchings; how 
pruciple, does the case of a catalogue, list, or desc 
Uon differ? A copy or impresuon of tiu etebi 
could only be a means of communicsting kaawlet 
and information of the original ; and doei not a list a 
description do the same 1 The means are different, I 
the object and effect are umilar: it is to make kno' 
to the public, more or leas, the unpublished works i 
compositions of the author, which he is entitled to ki 
wholly for his private use and pleasure, and to wil 
hold altogether, or so far as he ma^ please, from t 
knowledge of others. Cases of abndraieiitB, ttm 
tions, extracts, and criticlams of published worki, hi 
no reference whatever to the present question. Th 
all depend on the extent and right under thesdiv 
respect to copyright, and have no analogy to the < 
elusive ri^ht of the author in unpubliiBed com^ 
tions; which depend entirely on the comiiio»-I»»"8 
of property. A clerk of Sir John Strange unng, 
his employ, made an aiwidgmakt of such of ha vua 
script cases as related to evidence, was reatiuKd 
Lord Hardwicke, in 17fi4, from publishing it, the cj 
themselves being then unpublished. Upon tbe & 
question, therefore— that of property— I am clearly 
opinion that the exclunve right and interest oi] 
plaintiff in the composiUons and works in queti 
being esUblished, and there being no right or mta 
whatever in the defendant, the plaintiff is enlJUeu 
the injunction of this Court to protect him ^gwj * 
invasion of such right and interest by the dew™ 
which the publication of any catalogue woold vaam 
edly be. But this case by no means dcpendi sueiy j 
the question of property; for a breach of 
dence, or contract itself would entiUe tiie pwf*"' , 
the injunction. The plaintiff's affidavit states tbe^ 
vate character of the work or composition, "J" 
tivcs any license or authority for publication, mn 
of some of the etchings topnvate friends noV"!? 
any such license or authority: and states distinctly v 
belief of the phuntiff tiiat the catalogue, «>o^"f" 
scriptive and other remarks therein *^ontained, w» 
not have been compiled, except by means of tne pj' 
session of the several impresuoos of the ^'—'"^ , 
reptitiously and improperly obtained. To t^^/^ff jj 
answer is made; the defendant saying only tbst" 
not at the time beUeve the etchings to have b»J|\j 
properly obtuued ; not suggesting any mw* ^ ^.j; 
they could have been properly obtMned,8oasW 
the possessor to use them fiw paWicatwO' Wi 



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113 



Asf eoBpoa^QQs wwe kept prirate, except as to some 
^WBtopnntB Mends, and some sent to Mr. Brown 
21 haTii» certain impTessioAs taken, 

^^pwsatMoa of Uie defendant, or of his partner Judge, 
■^■ rt hm a tipinted in a breach of trust, confidence, 
Wcemd in Brown, or some person in his employ, 
i ^'i* ordered, and retain- 

■ *^,Mniber; or in acme person to whom 

vtK giTen, wMeh is not to be snppoaed, but 
-»atte ot^;m the poasesdon ^ the defendant, 
"'*Vlly * breach of trust, confidence, or con- 
bid, le ™ wuddered in the case of 77ie Duke of 
» I I ' i j SWieaw, (2 Eden, 329). And upon 
Aftentaawbtiulfof the plaintiff, and in the ab- 
"aMK ^ mj (ipWtion on the part of the defendant, 
4 na \tnk ts ■some, that the possession of the 
^^UM ■ a^frngs on the part of the defendant 
w InipW tb foDndation in a breach of tmst, con- 
•d»e, atmtncl, u Lord Eldon did in The cow 
^"^i ItetweSf (as reported in 3 Law 
jw^ na. 313); ui upon this ground also, I think the 
Jgbi atilT's litk to the iDjoneUon, aoaght to be di»- 
■Bttge^ MititabMed. The obwmtioni 4^ Viee- 
C^Biiiiil^iiii Wipiin, in l^ph^ T. Ctartt, (2 Hare, 
■a>a >. M^ iffSttfttothapaitof the eaae. He says, 
■*Ewe«y (msplored in a merchant's counting- 
fc«»e » ndcroinplied contract that he will not make 
F*^ctliiriiib«le»nB in the execution of hisdnty 
y cfar t- ifchtJcfeodaiithssobtainedcopies ofbooks, 
^ wy preUbly, be by means of some clerk or 

* rftitplMtiff; and if he availed himself surrep- 
■■J" ^ It* infimiation, which he could not have 
t (ii«ipB»nguiHy of a breach of contract 
■a%ii, Ithink he conld not be permitted 
■«»lf of that breach of contract." In this 
I Mjr munr; and I think that the case 
^^Sv juMtWinam baa actually arisen, 
^"" tbttridanee, be asmimed to have arisen, 
ttd the consequence must be what 
- f .y'pn thought would follow. Could it 
W c «M* w H tht the cleric, although not justified in 
•f the accounts, would yet be 
P«™™ *? P^Iwi the eobetance and effect of them ? 
I» the matter or thing of which the 

"Tir^^oirledge being theexclusiye pro- 
'^^Vll*!'™''''*'** nglit to the interposition of 
2^ ^* ""^ being made of it ; that 

^-J JSIISt ^ ^ protected in the exclusive 
*"''yn'!"'hst which fa exclnrivelv hiaown. 
f»M wW^ttSMof Lord Eldon, expressed in the 
cMB «x ^Wr. f^Uioit, in the year 1820, respecting 
M ^^'^o^Grarge the Thirxl, during hu illness, in 
vU«,icis[diDtto a note, with which I have been 
if Ur. Cooper, he said, ** If one of tbe lata 
Kias'i}inKaB> haa kept a diary of what he had 
hard w am, this Conrt would not, in the King's 
IHrtia^ ^rr ptnnitted him to print or publish it." 
7^ OKifSrJelM Strmge'i Hantucrij^ is also ap- 
plkaiii to tbn point. Some minor points wero raised 
at thiBtt, to vnich I will shortly advert. It was con- 
leaJU, tbt there ought not to be any injunction until 
tte jUatiS bid establbtied his title at law ; and cases 
«m itfeTTEd to, in which it was supposed I had laid 
4eni^tita'>liihing such a propoaition. The cases 
jtkmd ta wen cases in which the equitable jurisdic- 
fiBSafrwb(JI.T from some legal title, and was exer- 
miiMj^ thepQipose of protecting the party in 
liiaioj^^ of such 1^1 title, and have no appiica- 
^ t^tMU in wbieh this Conrt exercises an original 
>l^^g0MfeB( jurisdiction, not for the protection of a 
Tijn&rignt, bnt to prevent what this Conrt 
•Z- ..1.1 treats as a wrong, whether arising from 
pf unquestioned right, or from breach of 
Hrfdence, or contract, as in the present case, 
^ Jkeue ef Jbenutiij^t Lecturet. But, even 




in the cases so referred to, I have always held, that 
it was for the discretion of the Court to oonrider, 
whether the defendant might not sustain greater in- 
jury from an improper injunction, than the plain- 
tiff from dela^ in granUn^ it. In the present case, 
where privacy fa the right mvaded, postponing the in- 
junction would be equivalent to denying it altogether. 
The iiiterpoeition of this Court in these cases does not 
depend on any 1ml right, and to b« effectual it must 
be immediate. It was thai obaenred that the iniuno- 
tion was too extensive, as it applied to eaiy catalogne 
of the etchings in the bill mentioned ; and the pluntiff 
had diewn a title to only some of the etchings there 
mentioned. If the defendant had any interest in this 
matter, the objection would deserve oonsiderationj but 
it u clear he has none, being already under an injunc- 
tion as to all those etchings to which the plaintiff haa 
not shewn a title in thfa case* : so that, while tbe other in- 
junction continues, he could derive no benefit whatever 
from any alteration in the terms of this injuncUon; 
and, if any such alteration were made, it would not 
a£Fect the question 6[ coats, that not being the object of 
this motion, which must, therefore, be refused, with 
costs.— JfolMM r^^Wsei^ wsm cottt. 



VICE-CHANCELLOR OF ENGLAND'S COUBT. 
Ek parte Bkohhkd.— Jim. 31. 
L^aqr-duty Aet, 
Semble, if an Infant's Leaaof hat been paid into Courts 
md iMvealed fti Stodt^ m Stodt trill he traneferredt or 
told ma mtd the pnceedt paid to the Party eiaithiy 
of hit OptioH, 

In tliu matter, a legacy, to which the petitioner had 
become entitled during infoncy, had been paid by the 
executor of the testator into court, and inv^ed by the 
Accountant-General, la pursnance of stat. 36 Geo. 3. 
c. 52, a. 36. The petitioner, upon coming of age, had 
obtained the usual order for a transfer to her of the 
Consols in which the legacy had been invested, and for 

S&yment of the dividentu wnich had accrued thereupon, 
he now, however, for reasons of personal convenience, 
made the present application to the Court, asking that 
the former order miglit be varied, by directing the Ac* 
conntant- General to sell the stoclu and pay her the pro- 
ceeds of such Bale, instead of transferring tbe Stock itael£ 
Saiek. for the petitioner. 

The Tice-Chakcxuox was of opinion that he had no 
inrisdiction to make the desired alteration in the order. 
The act (sect. 52^ directed, that money paid into conrt 
under its provisions should be laid out by the Ac- 
countant-General in the purchase of stock, which, 
with the dividends," should " be tronsferred and paid 
to the person or persons entitled thereto, or otherwise 
applied for their or his benefit," on application to the 
Court. The words *' transferred" and " paid" respec- 
tively referred to the stock and dividends previously 
mentioned in the section. The latter expression, 
" paid," roferred to no otlier payment but that of the 
dividends. His Honor, however, stated, that, if the 
Accountant-General made no objection to the proposed 
alteration in the form of the oraer, he was inUing to 
make it. 

Pad WICK v. Haksup.— J5*. 8. 
Practice — Hearing Motion to diuolve. 
Plaintiff obtained the common Order et^ng Execution in 
Dcfendant't Action at Law: Defendanfe Motion to 



* Uia Lordship here slladed to a umUar iojnnction wUdi 
bad been obtained agunst the defendant, in the informatioo 
Til«^Monwy.Geiier«/v. Stramge, which bad been filed for 
the purpose of protecting tbe interests of ber M^eafrr in those 
portioos of tbe etdbings vUdi were the pn^erty at her Ma- 
jesty. 



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di$»ohe mould not he heard till (Ae J)^^ ofim Trial: 
Court refuted to qpfMMf am aarfy Dag for kearinff 

Motion. 

Tbe defendants in this cue bad btooght their action 
at law against the plaintiffs^ and the cause would come 
on for trial on February 27Ul The plaintiffia filed 
tiieir bill and obtained the common injunction, Which 
onlj stayed execution, hut left the defendants at liberty 
to proceed to trial. The d^endanta had since put in 
Ihetr aoswer, and obtained aa oidar nia to duBoIre, 
vhich would h« heard on the next seal, Fatomaiy 28th, 

Bemilfy now moved, on behalf of the defisndanta, that 
ilM Court would appoint an early day for hearing the 
motiim to diast^Te^ m order to save expense ; finr, S this 
Court was of opinion that the injunction cwH be eus- 
tuned, their tnal would be nselcei^ aad thOTwonId not 
proceed with it. [He isitad BMmm r. W0nUlL (fi 
Vet. 662)0 

ShapUr, on behalf of the plaintiffs^ undertook to shew 
cause on the merits against diasolnng the injunction, 
and opposed the appointing an early uy. The defend- 
ants m equity had chosrai to bring tuair action, and 
most go on their peril. 

The VicB-CiuitcsixoB said, the trial had nothing to 
do with the matter, beeauae the injunction did not 
extend to stay it : and dedded that he should not inters 
Im^JfoCjim nfiiaei. 

LKTHBRinaB V. Cbabibb.— ^ei. 8. 

Praaie&—Pro Confatto, 
A JDe/endantf after putting in hit AapearoMe to a Biil 
filed in 1846, had returned to hit Regiment in India. 
He had vut in no Antwerp but a trots BiU had been 
filed if himtelfand his Gthdefmdmt. BiU ordered to 
be taien pro Omfetto against Aim. 

The bill in this case was filed in August, 1846. The 
defendant, £. J. Charter, who was so officer in the 
arm;^, went to India to join bis regiment in 1842, but 
was in England shortly after the bul was filed, and had 
pnt in his appearance, ainoe which he had retomed to 
India, where he still waa with his wgimenL Tbe other 
defendant bad appeared and pnt m his answer; but 
Charter bad not put in his answer. It was stated at 
{be bar, that a cross bill had nnce bem filed by the de- 
fendants. 

Bethell now moved, pursuant to notice, that the Clerk 
ni Becords and Writs might be orda«d to attend at the 
hearing with tbe record of the bilL in order that the 
bill might be taken pro confesso agamat Charter. 

Elmsl^ opposed, and said, tiiat this was not a case to 
have the bill taken pro confesso. Ifo steps had bem 
taken to compel the anawer, and it was merely n^Iect 
on the part of the defendant 

The Vicb-Chancbixob, however, was of opinion that 
the case came within the very words of the 77th Order 
of Hay, 1846. 

Elmtlgf then contended, that as tbe Court, by the 
TBtb Order, was empowered to order tbe hill to m taken 
pro confesso, either immediately, or at such time or 
npon such farther notice as under the circumstances of 
t£e case the Court might think propo-, the Court would, 
in this instance, exercise its discretion by giving suffi- 
dent time to procure an answer. The form of the 
order approved of by Vice-Cbancellor Wigram (Owrage 
T. WardeUf 4 Bare, 481) gave time. (See Dan. Ch. 
Pr. 477). The defendant s solidtors wereready to put 
in an answer directly if the plaintift were willing to 
take it without o^h or signature. 

Tbe Vicn-CuiioxLLOK observed, that filing the cross 
bill only made the ease worse agunst this defendant, 
and made the Mdw aoowding to tjM terms of the notice 
•f motion. 



riCE-CHANCELLOB KNIGHT BRUCFSC 



LamJUori and nmuO—Aprtemau far 

PaifMHUHUBi 

By an AgrtmmO, dated m 1843, a Tenant frm i 
Tear had the OpitOH to taie a Lease for TVms 
Years from Ladjf-day in that Tear. In Seat{ 
1847, he, having allotoed the Premisei to /cM i 
Slate df Decay y had a Notice served on Umte 
He then demanded a Zeaset and filed a BiU for i 
Performanee; but ths same was dismissed, mli ■ 
This was a bill filed by a tenant agdnst kiika 
for a specific performance of an agreemmt Nut^ 
plaintiff^, was tenant to the defendant, under a i 
ment in writing, dated 23rd Hay, 1843, at s r 
28/. per annum, with an option to the plunl 
take a lease, at the same rent, for twentv-ou 
from Lady-day, 1843, If be, the plaintiff Bbould 
fit. The plaintiff^ entered into possesnon and pai 
rent down to Midsammer-dqr, 1847. Tbe defs 
became itiwiatiiJiird with the conduct of tiie plaiBi 
sufieri^ tiie premises to foil into decay, ana aem 
plaintiff with notice, on tbe 28th SeptembOT, 18 

a nit at Lady^ay, 1848. On tbe I3tb October, 
le plaintiff; through his solidtor, wrotea letter taj 
defendant demanding a lease for twenty-one yetn^ m 
tiie option in the agreement The defeodsot ifii 
garded this application, and on the 22Dd April, li 
usued a plaint, under tbe 9 & 10 Vict c. w, in I 
Southwark Court, before Uie judge «f thit court, 
obtain possesnon. That plaint was beard on tite 16 
May, 1848, and judgment was given for thedefmdu 
the landlord, to nave possession ; and a writ vmm 
of possession was iasued accordingly. On tot 18 
Mav, 1848, this biU waa filed ior a specific pefoonn 
of the agreement Ibralcaae for twenty-<8ie yean. Ti 
answer stated, that the ^^tiff had albwed w P 
mises to foil into greet decay and dili^datiim. T 
plaintiff' entered into no evidence, but cross emnw 
the defendant's witnesses. The defendant tfsauD 
five witnesses, who dearly proved great dil^iflsti"" 
JimseU and Martindale, for the plaintifF, eitd Get 
lay V. Tie Duke of Somerset, (1 Vea. & a 68). 
IT. M. James and Steere, for the defendut. 
Knight Bbdck, V. C— I am not sure thattteig 
tiff" is right in having delayed the exercise of hB^w 
for so long a time. I thmk the defendant nntt 
taken to have expected that the plaintiff' 
the premises in proper repair. I must dismiMHisplB 
tiff*a bill, with coeta. 

CASES IN BAimBUFTCT. 
Ex parte HooKnre, in re GmroiiT— »/i>i. M. 
Substituted Bond— Voluntary Bond. 




he executed the substituted Bond, vaUd, if ^*J'T 
action is not tainted with mala Fides on tie Partej* 
of the Parties to it. . , ■ 

The Case of Ex parte Beny (19 Fes. 218) 

This case was an appeal from the decisioa ofi 
Commissioner Bere, rejecting a proof upon two dob 
The &cts were as follow:— Mr. Samnel GuDdiy. 
bankrupt, was the devisee under hu btber's will ot t 
grcater part of bia fother's property; a wtf ^* J 



Semuel Gundry, Mrs. Hookims Se mother of tb* PJ 
tioner, being nearly unprovided for. TbeMyjjn'J 
induced her brother to repair what she believed u ^ 
act of injustice, and, in that year, he gave her « o« 
for SOOO/T, with interest at 6£ per cent, ^t twj 
time, Mrs. Hookins acned a mauorandnni ''l^f'j^ 
the bond, that aba we«ld Mtenfores pejB"""" 



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THE JURIST. 



IIS 



p^pd money, lo long u the interat should be reeu- 
i iP*yi?*^™^"r«»afterthede«thof theobliffor, 
-4 1fB.HookiiB died in 1841, up to which time the interest 
? « tbe W «H duly p«d, IAt. Gondry all that time 




«a buBM as & banker at Bridport. Sbe b»- 
1&« bond to her three chUdren, and they n- 
Samd Gnndry from it, he giving to each of 
k a W& for M»0^ payable at the expiration of Atb 
B fnmUidMthtVitii interest in the meantime. 
i4f liwIkneboBdswiB paid off by Samuel Gnndry 
Us mam^mi Mm hb boiknipkor. In 1847t 
^anA Gmdrf, the ohligor, beeame bankrupt. 

— fcukrnptcy, the two rem^ing bonds, on 
tEBlmd for pTW^ were objected to by the as- 
-,«lfc»gromid,thit,»e they were substituted for 

waliii«yb(ina,th(y were not admissible. After 
Wbn tke comnuMoiier, he rejected the proof, 
■■at »iB ta ^peal from that decision. 
_ al £ fPl CW, for tbe petitioner, would aa- 
^ fcgttepwpoeeof thesiyument, that the ori- 
^■M MiJ wu paifAj Tolmtary, and, on that aasump- 
9m, tofa the ennion of the Court. If. upon that 
the Coort should be of opinion that the 
"we bfalid, theil the question 
wBgiti, vbetbcr or not ^e original bond was 
y T<tatiij. In Etjartt Betrjr, (10 Ves. 218), 
Blmiimhj Lord iMon, that, eren although a 
« nlitinjr, it forma a ralud>Ie consideration 
mmtygireninnbstitntion for i^ if there 
item the trwBsction. It had hem said, 
»wH be repeated as an objection, that 
mlbm Um the hoada in qaeation were made Mr. Gun- 
isiolTeat, end, therefore, that the case fell pre- 
witiiB the salieeqiient decimon of Lord Eldon in 
tefleny, where it is stated, at the close of the 
thst «n Lord Eidon being informed that the 
nudrert ^hea he made the substituted 
■si, tf thst eoald not be eontiadicted, he could 
— " 'g- . yP ? Wl>»ti<« at the olBce, with a 
mm U MM Hill the nd nuanlog of this obserration, 
th> j&fonthadbeea procond, and frmn that it ap- 
^mtmd^^iiikn ft gare Uie bond in Blay, and 
^^ad n cTwtm together in August, and that ho 
«M ■rt nw«at it the time, but most have 
\mu — thst he «M B. With this additional informa- 
^fvu Berry, as reported, it was 

- M MB Bdon conndered the transaction as 



■[^?|'*Mes, the bankrupt endeaToaring to 
gi99 » Jtod ar I tad security, in fraud of his credi- 
taou /> tbepnmt case there was no imputation of 
barf tiutArn^m nothing to shew, that, eren if 
Xz.6«B^*«i]iMdTeiit at the time, he knew that 
IkL SeftrfrwBit, the Bridport Bank continued to 
taamtt ktness for u years afterwards, and, more- 
on^ tk kadt were not payable until five years after 
% etilfsr'i far*fc--aa hieontestable proof that he did 
M eitfwpjrt* bankrapt^, or any fraud upon his 
9tBm. Wbeo dw caw waa ainwd before Mr. 
Ht^^mee B«f^ be stated that tbe only^ question 
MM )K strthrr die mere &ct of the obli^r being inaol- 
'^7 M (whether known or unknown to bim, or whether 
jji ««e intended <v not) brought the caae within jSr 
wmUB^; *°<' ^ expnady said that there was no 
Zmttim of fraad or bad nath in the ease, on the 
■■iefettert^the parties to ibe transaction. 
^gaatmw^ Shi^pt«ry far the asrignees, contended 
f^kwm dear upon the eridenee that the bankrupt 
jjipphMitat tne time tbe substituted bonds were 
^ he waa so not only as respected the partner^ 
JZ^^ME, btt as to hb own aeparate estate. From 
7aidaritef the vrignee^ and from the accounts, it 
w Am dut b« waa in a state of fanolrnicy for 
MT|«n before — n faet ha nnut hare known, or he 
oM, ad, therefore, nnut be preanmed to ban 
kagati la exnninatioii of the Moeiuria taken by 



I 



the official assi^ee, the aeeonntAnL and others engaged, 
shewed, that, m 1825, neither of the partners poeseesed 
any separate property, and that both of them were, at 
that date, insolvent to the extent ai 96,000/. The firm 
never had any actual capitaL The younger bankrupt 
had a small separate estate at the date of the fiat, whioh 
served to par separate oreditore, and leave a sorplos of 
17001., but the separate estate of the obligor in the bonds 
waa e^tly deficient. The proofa against the joint 
estate ware 14<^000^, and the assets would not realise 
half that sum. For all these reasons, th« assignees Mi 
it to bo their duty, on h^ialf of the creditors, to resist 
the proof. With r^;ard to the case of & parte Btrrw, 
OS reported, it waa an authority to shew, that if the ob- 
ligor, the bankrupt, was inaofrent at the time he exo> 
cttted the bonds, that fiuit was enough to invalidate a 
security substituted for a rolnntary security, althougfa 
otherwise it would be good ; and that case correnrandM, 
as reported, with that of QiJJum r. Locke, (9 Vea. <tl2), 
decided by Sir William Gtwit. 

limeeeUwBa not called on to reply. 

Krioht Bbucb, V. C. — There does not appear to 
have been any affidavit in that case of Ex parte Berry; 
therefore, I suppose it was argued upon tne admission 
of facts. My Impreasion of the case of Ea parte Berry 
\m, that Lord Eldon did not act upon the mere evidenoo 
of insolreu^, but inferred from it, that the second 
seearity had been ^ren with a riew to bankruptcy^ 
not only with a knowledge of the filing eirenmstanosf 
of the obligor, but with a riew to bankruptcy, and for 
the purpose of assisting and improvimf tbe case of the 
oblij^ That is my impresrion. So understanding 
the case of Ex parte Bern/y I entirely arree with iU 
la the present case, I do not understand it to be 8ag>- 
eeated that either of the obligees had, at the date of the 
bonds, any knowledge of tne insolvency of Samnd 
Gundry or of the Bridport Bank, or that they bad 
any fraudolent w unfair intention. I believe that is 
the state of the evidence as to them. As to the obligor, 
it may be that he at least suspected bad cireurastaneeSL 
or would have done so if his attention had been directed 
to it ; but^ on the part of the obligor, I believe, that 
neither his peovniary cirenmstanoes, nor the ciream- 
stances of his house, entered into his knowledge hi 
giving the bonds. I brieve, that, on his part, the 
transaction was not in the sltghteet degree connected 
with the actual or apprehended insolvency, with the 
apprehended or expected bankmptoy, or with anr 
riew or notion that would not equally have been in hu 
mind if he had been one of the wealtniest men in Eng- 
land. I beliere the transaction was fair in every re* 
spect, and in no sense with the riew or intention of 
bettering the case of either of the obligees as against 
the general creditors of tiie obligor, the bankrupt. 
That being so, I think tbe proof must be admitted. I 
re^t, I would not so deetde. If I cMimdered, that, hj 
doing BO, I was contravening Xord Eldon's opinion m 
Ex parte Berry; but I do not think that I am. I 
haroly cenrider myself as difierinr from the commis- 
sioner. I net only oonnder that, l}Ut I have not the 
same evidence. He seemed to leave it to the Court to 
decide, rather than to decide it himself. Howeveiv I 
have the satis&ction thinking that I hardly di^ 
from him. ____ 

£» parte Rnum, im re Cuain»ait^£>ee. 20. 

C o tt § B wa h n pt TViufse. 

A defaulting Tnutee became banlruptt and the Oestuk 
que Trust petitioned to prove agmttet the Eitatef As 
being then tn Prieon, at their Intlance, fir Contempt, in 
not dbe^ng an Order for Payment of the Mon^ info 
Court, in a Suit instituted by them for Breach ef 
Trvst. The Bankrupt, tMearitM upon the Pe^ioiu 
of^ioi f» hit Diadiarge f^ Ouiody, and for hk 



\ 
I 



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Oottg 9/ apptarina. 7%a Oowi gam him 40r. Co^, 
ha refuted to dwMarge him, 

Thfl qutttion in this case was one of costs. A bill 
had been filed by Mr. Rylands and his wife against 
CrottdsoD, a solicitor, (the bankrupt), for breach of 
trust, in respect of funds to which they were entitled. 
By his answer, Crondson admitted his liability. An 
order was made in the cause that lie should, within a 
certain time, pay the amount adndtted to be doe from 
him into conrt. This order was not complied with, 
Mr, Croudson was taken and imprisoned under an at- 
tachment, A fiat afterwards issued agdnst him on his 
own petition, and a petition was then presented in the 
bankruptcy by Mr, and Bfrs. Rylands for liberty to go 
in and prove for the amount for which the bankrupt 
was liable, and for the appointment of new trustees. 
The bankrupt was served with this petition. The pe- 
tition came on to be heard, but stood over for the pur- 
pose of bringing before the Court new trustees of the 
funds, to be appointed at once, without a reference. At 
this hearing Mr. Croudson did not appear. Notice was 

gven to Mr. Croudson of the day when the petition was 
come on again. When this petition came on again 
to be heard, Mr. Croadaon appeared by counsel, and 
applied that he m\Ai be dischaived from custody, on 
the ground of the debt due from nim being about to be 
proved in the bankruptcy. This application was re- 
fused ; and an order was then made according to the 
prayer of the petition. In drawing up the minutes of 
the order, the question arose, whether Mr. Croudson 
was entitled to any costs in reqiect of the petition. 

X>e Gexy for the petitioners, said, that the usual course 
of practice in such petitions was, that the bankrupt 
should be served, but that he never appeared, and the 
order would be made on an affidavit of service. By 
these means no costs would be incurred with reference 
to the bankrupt. If Uie bankrupt had no objection to 
make to the petition, there could be, of course, no use 
in his appearing on it; and, if he appeared without any 
reason, he ought not to be allowed costs. In tlus case 
Mr. Croudson was a solicitor, and must, therefor^ have 
known himself the nature of the petition; and, in ad- 
dition to this, he did not appear when the petition first 
came on. 

Baeotij for the bankrupt, contended, that there was 
no such rule or practice as laid down by the petitiooei^s 
counsel. The prayer of the petition was for liberty to 
prove, and for the appointment of new trustees, and 
"such further or other order in the premises as the 
Court may please to make." The bankrupt had a right 
to appear at the hearing, so that he might see, that, 
tinder the general prayer of the petition, no order was 
made against him ; and, if be had such a right to ap- 
pear, he was entitled to his costs. 

KinaHT Brvoi^ V. C—Under the particular cirenm- 
itances of this cose, let the bankrupt have 40*. costs. 

VICE-CHANCELLOR WIGRABTS COURT. 
HiDDLKioir ff. But and Others.— /U. 13. 

Appointmmt of New TSrtutm^SfeetofDeerM on Dit- 
eretion ffivm to amtmmng Trtatee. 

In a Suit for the AppoitUmtnA of neto TrutUa in the 
PUm nf a dtucmfand a r«ttring Tnuteey a Decree 
SMff mad» at the BeariMf timpfy referring it to the 
Master to appoint new Ihuteee. T^e Matter havinff 
mpahtted wUhoiu regard to a Power of Nomination 
given the Will to the remaining ThwfM, the latter 
excepted to the Report. Exe^aiiont ovartUed^ on the 
Chound thatf in the Absence of af^ special Direaion 
in the Decree, the Discretion was transferred to the 
Master. 

By the will and codicils of Boswell Middleton, the re- 
^oary, real, and personal estate of the testator was 



given to his wife, hia brother, and a third party, iq 
trust for the wife for her lifo, with remainder to ' 
persons therein menUoned. The will provided, Uul 
ease any of the trustees therein nominated and 
pointed, or any fatore tmstee or trustees to be noi 
nated in the place or stead of them, or either of tiiem 
thereinafter mentioned, should happen to die, or de 
to be disehaiged from, or decline or become inespabli 
act in, the trusts therebv in them respeetivdy repoi 
before audi trusts should be fully executed, then, sod 
often as the same should hap^n, it should snd mi^t 
lawful to and for the surviving or continoii^ tmb 
or tmstee, by any deed or deeds, instrument ot instr 
ments in writing, to be executed in manner that 
mentioned, from time to time, to nominate, eoDstttii 
and appoint any other person or persons to be s tuts 
or trustees in the place of the trustees so dying or i 
siring to be discharged, or refusing, or declining, ot 
coming incapable to act; and thereupon the sud ti 
estates, monies, and premises, the trustees or tnuta 
which should so desire to be discharged, or refott 
decline, or become incapable to act, should be Ttstw 
the new trustee or trustees jointly with the snrnr 
or continuing trustee or trorteea, or solely in n 
new tmstee, as occasion ahonld reonire; and eri 
such new trustee or trustees should have tbe at 
powers and authorities, to all intents and parpoi 
as if he or they had been originally nominsted 
tmstee or trustees by Uie will. After the death 
the testator, his widow and brother exerdaed tl 

Swer, and by indenture duly executed sppotnted « 
odgson to act in the trusts of the will in lien of tl 
third trustee named therein, who had predecctved V 
testator. The testator's brother afterwanb died, m 
the widow contracted a second marriage with the a 
fendant Reay. Reay having become banki^ tl 

Sarties interested in remainder in the testatori m 
uar^ estate, expectant on the death of Hn. Res 
applied to her to exercise her power of nouiutiDg 
third trustee in favour of a party whom thqr WM 
This she rdnsed to comply with, but pn^oied a 
other party, whom the pUintifTs objected to. "1 
correspondence upon this subject was eomsKsced > 
1842, and was continued down to 1847, wb«i plttnW 
filed their bill, impeaching the appointment of HodMoi 
on the ground that, as the third tmstee nsmed i 
the will had died before the testator, the sppoista 
were not properly surviving or continoiM 
within the terms of tlie power in the will ; snd Bcelui 
the removal of Mrs. Reay from the office of tnwtAj 
the ground of the bankruptcy of her husband. 1' 
bill also prayed for the appointment of a lufficw 
number ot persons to act as trustees of the will, i 
the hearing of the cause, the Court was of ophiion ta 
Hodgson was a propetly constituted trustee; bnl, opc 
his declining to act hirther in the execution of ^^Y^ 
of the will, made a decree referring it to the 
appoint two proper persons to be tmstees, in the ^ 
of Hodgson snd the testator's deceased brother. 
Reay, as the sole continuing tmstee under the tesUiw 
will, made a claim before the Master to a right to v 
minate the two new tmstees. The Master, notwiu 
standing such claim, appointed the nomine °' 
plaintifls, Mrs. Reay then excepted to the "FjVJ 
the cause now came on to be heara upon the 

^ayron Parler and ShObeare, in support of tM o 
ceptione^ aigned that the existence of the snit did n» 
deprive the remaining trustee of the right, o'TC 
her from the duty, of proTiding for the due traD«n'»?^ 
of the trust. That was certainly Uie role up to 
time of the decree, and must prevail equally siw^ « 
cree, as the Court, where it did not undertake w t» 
minister the trust, merely required the t™?^ " 
under its control, without depriving her of the 
cise of her discntion, {Cafe t. JBmt, 3 Haw, ^> 



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THE JURIST. 



117 



^ *^ 8 Jttr ^ ' — 

ff»l JU itillL?* ^ SkafUibuty, 7 Vw. 

tAn, OB t^*^ *>f Hn. Kcay ; and no objection 



f 



of fitnea, to either aet of uo- 

^^°tttU?r''.f'' plaintifis, argued, that, 
V'^wlli exerciee the discretion 

la-mrf !; coming to the Court, a le- 

«wU kniwT*" ™ once directed, the Marter 
m tKl^^ ''"P'-S* »f the decree ; 
a* HWrtY tTS^l/i'''? direction in the decree, was 
Aft^ » fceiM ^i*cretion of the trustee, 

fcleriw ikTtu^' wfctence. the Court would never 
JJ^^^^t^dactttion of the Master. 
5«SrKL^ 2 S. «E S. 628). 

WdlK *» "^d* that at the hearing 

r L ' ^ ^0 ha'* the nomination of 
ji,,;^^. Jnthidob^ryed, that her right of 
Mte ^tmd^J^^^^ to in the Master's Office. 

W -wNldmL^ ■ '^■i>«t>t> t>M Vice-chancellor 
■■I ■III! I W ti^^''*'S^^i>ttill an answer had been 
*5«wft«>iotk(rJ«S**'** inqoiiy made by the 
wmi <B 'wwrii»V«„J!'' "P**** proceeded: 

Sr Win^v"n'^°'^? afterwards, 
flieiij^flfifeyinf'-C., said, that, previously to 

mm- trmtm if ike thon^'t g * *^ ^PP^'^t 



fit tioitth^ She had not, how 



She had not, however, 

pplied to for that pur- 

lSi£AawniT»^^V*^ refoaala being continued 
Ae. iSti£liS^'-^'i''» «f the bill i7l847. Had 

S*aal difectioout£ w^*V "fL^!!;'.?"!.'**^ * 
Z^Zj 5?*®. As It stood, the decree, 

^^~,P' ,°f*y"'^ direction upon the subject, 

'* «aater to appSnt proper per- 

■yato W tfort«>; /A.ftAy. effect, tranJfeiEig the 

froete atotA^^r. Thatwaa a circumstancJ not 

smtam^ wiU, tbt Vpointment of the defendant's 

■MOMi; ia4 » "wnb^ m » proper case, the Master 

-mid knM per nomination. The Master, 

Wnm,W prtL "T*=*«ot reamns for the ooome he 

W\A»»WT«y«^' The only question, therefore, 

\rfMtte^MA.^ttW question of principle. After 

)ima'm'!MV<>°>^^™* the lady's power to appoint 

m oaly aoRMUWt to be regnrded by the Master, 

^ caTekruMate n&:ht to interfere with the dis- 

oce^dTtie Inter- The Master had appointed parties, 

iLi the lafy excepted to the appointment without 

"^LMg^ig aBjtMoS >S>iittt the fitness of the appointees. 

Tr^ iiMitMt t0 '1''*^^ therefore, was, whether, in that 

^j^^aiUmfL the Coart coold say that the appoint- 

^^^iitt0 stand, limply because the defendant ori- 

^^.^jMirertoappoint? fle thought not, and 

Sriiwptgy^'*^ (lie grounds upon which the Mas- 

^^l^^gte^ the exceptions most be overruled. 

COVBX 0^ ftl™^ BENCH^MicH. Tkbm. 
».r« ZiXL OF Chabloiokt, Si& Wiujah 
Vinos ^^^^ cod Another.— iVo». 2% 1848. 

i/iMKr '"'^ recnted If a Shar^older 
Jm0^^tJitrt of JProntumcl Committ<t cf a 
~ ^mfi8»M ^ rteower lie Dtjtont on hi$ Shares^ 
JS^z!St^'* Jltf wu mdtteed to pay it by false and 
^Atvf*'ff^ore»mtatiotu of tM» Propiiiotial Copt- 
fiS^i ^^red thU the Plaintiff had paid tU 
^ f^^mJterw of tke Coawatgff and the Form 
Dtf'^'LM fi"" ^ tigned by Five Pertona, not 
Jtit'^fZu ^ ofthem^ as Tnuteei for the 

m^'^^ZB*dd,tJMt the Action for JtfoMjr &ut emd 
ftg^^/j net lie ajfomet Defmdonte. 



Semile^ in anek «m Action it tenet tieeeaeary. 



to prove that he was induced to pay the Xf^oak If i 
false and fraudulent RePreatHMiaau efDtfimdmta, 
Semble, alao, that DefendmO* would be liablt in $ueh 
Action for felae and fraudident lUprtaentatixma maid* 
if one J/en&er of the Proviaional CoMmittm wMoitf 
aiewinfi that thtf were cogniaant of them. 
AsBumpsemnt for money had and received. Plea, 
non assnmpsemnt. On the trial, before Lord Denman, 
C. J., at the idttings at Guildhall after Michaelmas 
Terra, 1847, it appeared that the action was brought 
by the plaintiff* to recover back depoeits which he had 
paid as an allottee of shares in the Newry, Armagh, 
and Londonderry Junction Railway Compan^r, on the 
ground that there was an entire failure of consideration, 
the scheme having been abandoned, and also on the 
ground of fraud. The defendants were members of the 
provirional committee; and evidence was given of no- 
tices of committee meetings having been sent to them» 
of their attendance at the office of the company, of 
their signing the scrip as committeemen, and of tmr 
names ming upon the letter of allotment of the shares 
upon which the plaiutiff" had paid the deposits in ques- 
tion. In order to prove that the plaintiff was induced 
to become a shareholder by false and fraudulent repre- 
sentations of the provisional committee, evidence was 
given, that, on Sept. 6, J84fl, an advertisement was in- 
serted in the newspapers by direction of the secretary of 
the company, stating that dl the shares had been allotted, 
and that many applications had been necewarily re- 
vised ; and that, on the 11th October, another adv^ 
tisement had been inserted, by the direction of the 
solicitor of the company, stating that the depoeit of 
per cent., required by the standing orders of the Hooie 
of Lords, had l>een made. The manuscript of the advert 
tisement, which was given in evidence, nad the word* 
" By order'* at the foot of it. Tlie appointment of the 
solicitor by the promoters of the company was put in, 
and evidence was given of its registration, which ap- 
peared not to have men made till toe 18th October. It 
was objected, for the defendants, that the advertise- 
ments were not receivable; that the secretary and soli- 
citor had no authority, by virtue of their office, to 
insert advertisements, which should bind the members of 
the provisional committee by way of contract, much leea 
advertisements containing miarepresentaUons; and fnr- 
Uier, that the order for the insertion of the advertise- 
ment should be prodnccd. The Lord Ctiief Jostiee 
admitted Uie advertisements. For the purpoee of shew- 
ing the Calaehood of the atatcmoita in the advertiM- 
ments, an account of the aflalre of the company, 
drawn up in July, 1848, on winding up the concerns 
of the company, which stated that the company had 
been dissolved on the 5th April, 1845, was offered in 
evidence. It was objected, that the terms of the con- 
tract were contained in the parliamentary contract or 
subscribers' agreement; that it was incumbent upon 
the plaintiff* to prove the consideration upon which he 
paid his money ; and, therefore, that he ought to have 
pot in that document, if he bad signed or agreed to 
sign it. The Lord Chief Justice thought that it was 
necessary that it should be produced, if the plaintiff 
proceeds upon the ground n failure of conndenUon; 
but not, if he procMded upon the ground of fmnd. 
The defendant Sir William Young was not a par^ 
to the account drawn up in July. The plaintiff bad 
applied for shares in August, 1845, whicu were soon 
after allotted to him, and, on the 0th September, be 
paid the deporits to the bankers of the company. 
The form of the receipt for the deposits was signed 
by five persons, as trustees for the company; the de- 
fendants were not among them. The Lord Chief Jus- 
tice left it to the jury to sav whether there had been 
fraud. The jury found in the affirmative, and a verdict 
was entered for the pluntiff, leave being reserved to 



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118 



THE JURIST. 



iba defendantfl to move to enter a nonmit. In the 
following Hilary Term, Jan. 13, 

Mimtagu Chamb«rt moved fbra rule nisi accordingly, 
or for a new trial, on the grounds of the improper admis- 
mm of eyidence, of misdirection, and of the verdict being 
agiUiut the evidence. First, the advertisements were not 
receivable in evidence. Secondly, there was no evidence 
ihai the plaintiff saw the advertisements, or that, in ap- 
plying for shares, he acted upon them. Where a party 
seeks to recover money on the ground of misrepresenta- 
tion, he must shew that the statements in the alleged 
misrepresentation were brought to his knowledge, and 
that he was influenced by them. (Minn v. TMin, M. 
& M. 367; Corbett v. Brown^ 8 Bing. 33; Pottm v. 
Walter, 3 B. & AdoL 114). [Lord £>aman, C. J.— In 
en aetioB to r«eoT«r the money pud upon the purchase 
•f a horse, I left th*t question to the ^ury; a mle was 
ebtuned to review that direction, but it was never die- 
pond of: but I aftorwards thought that the directicm 
was wrong; it is entering too minutely into men*B 
minds.] When fraud is pleaded, the plea is, that the 
defenduit. was induced to enter into the contract by 
ihwd. The ^aintiff should have given in evidence the 
subscribers* agreement, in order to make out that there 
had been fraud : it may have precluded the plaintiff from 
mine the provisional committee for his deposits. (Oar- 
wood V. Ede, 1 1 Jur. 912 ; 1 Exch. 264 ; Clemmtt v. Todd, 
1 Exch . 268 ) . [ Pattesonf J . — The contract was not com- 
plete till the snares were accepted on the 9th Septem- 
ber : the action could not be brought till that time. A 
day is ^ven for paying the money, and there is a 
penalty if it is not paid then.J Further, the defend- 
ant Sir W. Young was not a PMty to the publication 
of the account of the afiain of the company in July, 
by which alone the falsehood of the representation was 
sought to be proved; and the company, being dissolved 
on the 6th April, 1845, the duties of the provisional 
committee ceased then, and one member of it could 
not be bound by statements made by the other mem- 
bers, unless he was present at the meeting at which 
Hie statements were made or authorised ; and if one of 
the defendants was not a party to the alleged misre- 
presentation, the action against the three fails. Thirdly, 
the right to recover money back exists only against the 
party who receivsd it; or the party who received it 
mnstbe ^ewn to be an ^nt of the defendant. There 
was no evidence that the five persons whose names 
wem attached to the receipt were trustees for the pro- 
visional committee. Lastly, the question for the jnrv 
should have been, whether the connderation had failed. 

Lord DsKXAN, C. J. — I feel strongly on one point. I 
think no doubt ought to be entertained, that, it a party 
enters into a contract, which has been preceded with 
fraud by the other party likely to affect his co-con- 
tnctor, it is sufficient to vitiate the contract, without 
proof that the former was, in fact, induced by it to 
enter into the contract. 

pATTBSoir, J. — I am of the same opinion. Here the 
question is, whether knowledge of the iraud is brought 
home to the defendants : suppoung it brought home to 
tiwm, I esD not doubt it is a representation which would 
^tiate the contraet. 

CoLKunoB, J. — If a person pnhUshes a misrepresen- 
tation connected with a conttact, and another party 
comes in ander it, and afterwards seeks to be relieved 
from it on the ground of fraud, I am of opinion, as at 
pnsent advised, that it is no part of hu case to make 
oat that he was influenced by the misrepresentation; 
it mnst be taken primi facie, that he was Induced by 
it to enter into the contract. 

WiGRTMAN, J., concurred. 

Thb Coobt granted a mle nid. 

In last Michaelma s Term*, 

* Nor. 9, before Lord Damum, C. J., Coleridge, ^llgbt- 
aun, and Erie, JJ. 



Sir F, 7%etlatr, Bm^ and Moggimt shewed eau 
As to the dcfendaiit Sir WiUiam Young then 
suffident evidence to go to the jury that he was a | 
vidonal committeeman prior to the 9th Sqifen 
when the plaintiff pud bis depomt. ''An aetioi 
money bad and received is maintainable whereva 
money of one man has, without connderation, got i 
the pocket of another." (Lord Ellenborongh, in j 
gm V. Rabinsom, 4 H. & S. 475, 478). [They slaoA 
Clarke v. Shee, Cowp. 107; and Atitinaon v. Peeoei 
Jur. 60.] There was an entire fiulnreof connderat 
( WotOner v. Shairp, 4 C. B. 404 ; II Jur. 373). 
this action it is not necessary to chaive the iekait 
with fraud. In Garwood v. £c2e, (11 Jur. 912; lEs 
264), the question was, whether the nonsuit wu ri{ 
upon the tenns of theanbecribers* agreement; no qi 
tion of fraud arose. The question id this case is in 
pendent of the subecoibeiV deed. [They aha d 
Ahbottt T. Sorry, 6 B. Moo. 99. J 

Marlim and BramweU, contra. — ^The advotisenl 
was not admissible in evidence ; and it was not tlu 
that the secretary had any anthority to public it. 
was a question for the jury whether the advertiwn 
was a material inducement to the plaintiff payiDg I 
money ; and for the purpose of defeating thecontnti 
the ground of fraud, it was essential for the jniy t«f 
that he did so. ( iVontner v. Shairpy 4 C. B. m\ 
Jur. 373). In Newton v. 7%« Mm^fvis of Ca^^ 
tried at the Sittingsafler Michaelmas Term, iB47, wbi 
was an action of assumput for money had and reeein 
against the defendant, as m«mberof the msas^iiigeni 
mittee of the Galway and Ennis Gruid JdbcImd Bal 
way Company, to rseover deposits under rinilu d 
cunutanoes to those of this case, Creiswell, J., bd 
there was no evidence of fraud for which the ddem 
ant was responsible. It most appear that the phi! 
tiff entered into the contract under the inducenoit t 
a Icsal fraud. Suppose the defendants were mmbei 
of the provisional committee at the time when U 
advertisement was published; there is no grouoti fi 
saying that they authorised an untrue statement. Fm 
in another person will not support the action formont 
had and received. If the &ctB were expanded on tt 
record, the declaration must chai^ge that the defoiduit 
committed a fraud, as would the declaration in anietiw 
to recover the value of work expended by nssm <rf tn 
advertisement. The letter of application sod AeUtU 
of allotment together form th« contract ; the letter i 
allotment Is in the nature of a second appliestion, an 
payment of the money is an acceptance of it. 
no agency on the jMtrt of the secretary was prorta 
the Couri; has no judicial notice of what tbe dntk 
of the secretary of a company are, and it will nd 
infer an authority to state an untruth. In AttuM 
V. Poeoei, (12 Jur. 60), it was held, that an *llo*toeo 
shares, who bad executed the usual subscribers' deed 
miffht recover back his deposit in an action for noo^ 
had and received if the scheme fiuled, and he esoM 
shew that he had been induced by fraud to sign w 
deed ; but the marginal note adds, " Semble, tl"***! 
directors of a nulway project cannot be 
agents of each other, so as to render one of them wiii 
for a fraudulent misrepresentation made by anotatf, 
unless he afterwards adopts it, or knowingly 
the fruits of it." Then w» no evidence ag«i» 
defendant Lord Chariemont; his name 
proq>ectus is only a promise to act, and his 
commences only as soon as he does act- ^'"^''^i^'f. 
is no evidence of money had and received ''/"vT 
fondants. There was no receipt of money by 
hands; and there was no proof of agency, 
mitting that the bankers received it as agents « 
trustees, upon the face of the document. 
Rolfe, B., in Com/oot v. fbwie, (6 Mee.S w. xv, 
4 Jur. 919; Omrvd v. ffmtk, in error, (U " 



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119 



^^)>3 1W drfttdKiU had no cofitml over the 



1,-1 „ Ctar. «A>. 

^**S^^,C.4, BOW ddiTsnd the jiid«>«iit of 

■Ml' 11' I **" " ^ money bad and 

■■■iiw, itOBgbt bj ftdiuflhoUer aninat three mam- 
«n « ttt BtoTiMai eonaittee S the Kewiy, Ar- 



te lawu 



!k? j^^*^ JoDctioo BmIwb^ Coiipany, 
*■* aeMittptid bj him on hie ahaiea, on 



^* that W WH ininaed to pay it hy the 
^ffww itpicMitatwM «f tha pnraioi^ 
■«k The trial took plaee beibn BO voder mne 
'■'■■'M"; ^ intmW to dkeot the jniy aeoord- 
to Ik doctriai in Febtofr t. .SbttfuMMd^ (15 
' & V. fiOl; 10 J„. anrnMciaUy laid 




!!^^ ''^•"ftwr T. ^Ittrp, (4 C. 
«4; U Jar. 373^ bj ny Bniher Erie. That 
qoMiioaed in the Court 
' oomet, bnt it had been 
handed to 
was nnable 
. the nnwe- 

, In Older to have the awrita ae- 

*lMd, that mnw had and reaeHadmMld 

to wi» ftr a BOMnit. 
lwam«lii&edwitfc the leatof tin Caait, that 
frf r»kfaieaaB| « aauait noit ba nade abao- 
* "^'wwidmccof the money having ew 
■"^'Thriag erer been at the disponl 
9m tne (taw "nniaiu, indeed. Lord Chariemont 
A^^m tefflWtWy in the same situation aa the 
miiM hmmS, auft th»t his Lordship was on the 
- ieaal eoMittee. In ITonflMr r.iSSLiify, the de- 
lA *ai (M of the "Twring oomiaittee. which 
tht U«ttlaMiU,«dhadthe eoHtnd and die- 
MrftkiqMitL 
Jjt i» art B^ftt to iMKtitsi that no pa»mal fraud 
'M^toafflKof the defendants; but it was 
"^J^ji^J^* iatcMsted BHmbers of the com- 
^jj*' MiiH btaait <rom the representations 
pawns enuMcted with them in 
aatoBwa Ob tte other hand, the acta deeeribed 
iw«lMplnntiff were said not to deserve that 
OKitioii ftff the jury, on which no great 
^nMeeddbeotertained. And it was furtlier u^ed, 
if findaleD^ they could not fonn the 
^""Ktioi agsiast theee defendsatsL On this 
^^■^*t aadf wiib to guard oursel Tea against being 
^JT*"??*** "> doctrinsa laid *>wn by the 
immdtamd, )^ whoae &Toiir we decide, <m grmnds 

flnM » BANC ATTBR BHCH. TERM. 
Dai it AnnoToiT and Othan m. TAMmx.-— 

Dec 18,1848. 




Bthalf. 
ttmimstm Gh- 



• jMmu$ If tium, fram Ymr la I'aar. 
wmflim, mriiimff/rommdk Prngmmt tmd Ac- 
tmimmmf av w< imts m t it i m i »M (A* /Ms, <i(a(, m 
|Mi — ^_ a CbfToraftoit eon en^ anrfntef ftf Pvei; it 
« iVamMpCtm rmml agtmut Me CWtwto- 
Umfnm tktir Aett^ that tk^ kme eontraeted m such 
« Mmma- Mfo 6e bindmp on fAot, tfA«tA«rif Deed or 

CtarMBS, to emfaree am exfcutorp Coatraet ajfaintt 
mCmfmrntim, it mugr ht mecasitrjr to shew, that it toot 
ifDted; bmt, m i tre iJu Corporation Jmte acted at upon 
m ttwwitid Cemtract^ it u to be prenmed agaiiut 
liaf Lw m g t l i mg km* btem dome that wat moeettary 
Umdm U m k im d i na Cbmlraet wob iaih Pmrtiat, lim 
k^ladflff OeJdmmtmje tt^woM ktiMkad^ 
tm ^ mmi t hmi ham wwi rfa r fj r wmdt, 
bftfaana « MliaB of gsebBMit had beuk bio«|M 



to diypswns the delsndant and othaza, claiming tmdar 
bnilduig leases, gtantad by the Dean and Chutar of 
Caaterbnry and Heniy Fenton, in 1786, to Thoaoaa 
Glutton, ofpart of the Walworth manor estate. There 
weta seTeral demieee lud; one beia^ in the Dean and 
Cliapter of Caatarbnry, and one in Pettinghall and 
othtts. The cause came on for trial at the Summer 
Assiaes for 1846, at Guildford, and a verdict was eur 
tered for the plaiiUiff,8ubjeot to a re&rsiioe, with paw 
to the arbitrator to state a ease fat the opinion oi the 
Court. The arbiiraior direeted the verdlot to ba set 
aisdc^ and a verdict to be antead fur tlie drfendaiit, 
and then atated, acoordii^ to tfaa authority ginB to 
him, the fikllowi^cas^for the Minion of lheConrt^— 
The Dean and Clupter of Canterbury, bung seised in 
fee of the maoar of Walworth, by iodantan^datsd the 
2Blh June, 1771, deniised the manor of Walworth, 
which includes, with other, the property in q n eeti o n in 
this cause, to Henry Penton, for tw«ity-one yeara. In 
1774, a private act of Parliament wsa passed, whereby, 
after reciting the leaee of the 29th June, 1771, it was 
enacted, that it should be lawful for the said dean aad 
chapter and their succeseora, and the eaid Henry Pe»- 
ton, hia exacotors, adminisiraton, and assifm Jointly, 
and tbar ■avocaUy and req>ectively woa theieay ao^ 
powered, notwitlMtandiBg any statoia to the eontzary 
theretofoia made a*d then in force, from time to time, 
by iadcntwa or indentores duly axscotad, under the 
setl of the dean and ehl^)ier, and abo under the hand 
and seal ftc. of the sud Henry Pmton, his uteootor^ 
administrators, and assigns, to make any leaee or laassa 
(tf all or any {MUi of the several lands, tenement^ &e. 
to the said Henry Penton demised, and in the redtod 
indesttoro described, to any pereosi or penons, for any 
term ta terms, not exceeding ninety-nine yean, to take 
efiect in posacasion, and not in reversion or remainder, 
<w by way of future intereat, for tbe purpose of build- 
ing, &C., at the best rent which &e., without taking 
any fine, &e.,and soas therentashouldhe resarvad and 
made payable quarterly, mm half to Heniy Puotcm, his 
execntora, adminisbators, and seeigns, and the other 
half to the dean and chapter and their soeoessors, exeept 
the first two years, and so as the leasss should be under 
the following restrictions, &e., and so that Uie lessee 
dionld covenant to build and keep in repair the build- 
ings intended and agreed to be huut by each leasees &c. 
By indenture datad the 27th June, 1778, the premiam 
demised by the former indenture wore, on the auKNa- 
der of Henry Pentoo, re-dnnised to him by the dean and 
chapter for twenty-one yean. By indenture, dated the 
8th June, ]77d. Hairy Penton demised to one Thonsas 
Glutton parte of the manor, whidi he hcM under the 
last-muitioned indenture, including the prapei^ in 
question, for twenty-one yeara, with oorenaats to renew, 
wbon hia, Henry Ponton's, lease wsa rsnewed by the 
dean and chapter, fat sixty-one years. By indentmtey 
datad theSffth Jnne,17B6, thepremiseaeontaiaedintiM 
two farmer iadeirtnrea of 1771 and 1778 were, on Us 
surrender, re-demised by tbe dean aad chapter to Heary 
Penton for twenty-one years. The arbitrator then 
stated, that, in supposed pursuance of the poweraof the 
private act paseed m 1774, and with intent to exeadas 
the same, by an indenture, dated the 26th June, 1786, 
duly execoted under the seal of the dean and chapter, 
and under the hand and seal of Henry Penton, and made 
between the said deem and chapter and Henry Peitfoa 
of the one part, and Thomas Clatton of the other part, the 
said Thomas Clatton having previously surrenoered his 
interest in the premises demised by the indenture, datad 
the 8th Jnn^ 1779, as to each parte thereof aa waio 
intended to be demised by the now stating indentua^ 
after redtii^ the act of Parliameot, it was witnemed, 
that, by vixtae and in pvnuanes of the powen in the 
private act of Fntiament, and in oenddwati<m of the 
nata and eovananta, nd of the coats and chi^gH 



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190 



THE JURIST. 



that the said Thomas Clntton had been at, and wonld 
be at, in erectiog and bailding seTexal brick messasfes 
or tenements on the piece or parcel of land thereinafter 
mentioned, they, the dean and chapter and Heniy Fen- 
ton, &c., demised to the said Thomas Glutton all the 
piece or parcel of land therein particularly mentioned, 
parcel oi the manor, together with all saoh mesraaf|;e8, 
&c., as were then building, &c., or should at anpr tune 
daring the now demise m built on the said piece or 
parcel of land, to hold &c. for ninety- nine years, yield- 
ing and paying &c. The lease contained several co- 
venants by the lessee corresponding with the covenants 
required by the act of Parliament. It contained a co- 
Tenant to keep in rep^ the buildings then erecting and 
baQdiDg, and to be erected and built, upon the piece or 
panel of ground. But there was no ooToiant in the 
lease or counterparts, on the part of the lessee, to build 
on tiie premises thereby intended to be demised. The 
premises so demised were part of the manor of Wal- 
worth, and comprehend the premises claimed in this 
ejectment. Thomas Glutton entered under the last- 
mentioned demise, and built upon the premises ; and he 
and his assigns and under-tenants have been constantly 
in possession and occupation of the premises in ques- 
tion in this cause; and he and his asngns have constantly 
paid the rent reserved to the dean and chapter by that 
demise, which rent hss been from time to time di- 
vidad amongst the dean and chapter in the proportions 
In which they were respectively entitled to the 8ame ; 
and he and his assigns bare auo conatantiy paii the 
tent merred by thesame demiae to Hen^Pentou and hb 
assigns. The defendant, by various assignments, is now 
assignee of the lease and term made to Thomas Glutton, 
as to a portion of the premises thereby granted, in- 
cluding the premises in question. By indenture, dated 
the 2fiUi December, 1788, Henry Fenton assi^ed to J. 
and T. Brandon all the premises demised to him by the 
indenture of the 2fith June, 178fi, for the remtunder of 
his term, except, inter alia, the premises comprised in 
the indenture of the 26th June, 1 786, between the dean 
and chapter and Henry Fenton of the one part, and 
Thomas Glutton of the other part. By indenture, dated 
the 2Bth November, 1780, in consideration of the sur- 
render of the lease of Sfith June, 1780, the manor of 
Walworth, by tb« sane description as in the lease of 
1771, was demised by the dean and chapter to S. and T. 
Brandon, for seventeen years. By indenture, dated the 
11th November, 1800, in conuderation of the surrender 
of this lease of 1789, the manor was re-demised for fif- 
teen years, &c. All the leases granted by the dean and 
chaptor, of the Walwortli manor, contain an exception, 
in favour of the dean and chapter, of all rents of assize 
belonging to the manor, and the rents and other small 
farms before the granting of such leases letten to divers 
persons. The lease of the 11th November, 1800, con- 
tained a farther exception, in the following words : — 
"And also except, and reserved out of this present de- 
mise to the said dean and chapter and their successors, 
sJl such rents and other rwht and interest, &c. which 
have been, or are, or shall be reserved to uiem in and 
by any building leases, for long torms of years, of any 
|Mirt of the several lands and hereditaments hereby de- 
mised, heretofore granted bpr them in conjunction with 
the said Henry Fenton, or in conjunction with the said 
S. Brandon and T. Brandon, deceased, or in conjunc- 
tion with the said S. Brandon and the trustees under 
the will of the said T. Brandon : or which have been or 
diali be hereafter nanted by the dean and chapter in 
conjunction with the said S. Brandon and the trustees 
nnw the will of T. Brandon, their respective exe- 
cutors, administrators, and asugns, or other the tenants 
or leasees of the dean and chapter for tlie time being of 
the estate of Walworth." All the demises subsequent 
to that of 1800 contain a rimilar exception, and wm 
inade,BswdlasflutytotherB8peetiTeIe8Bee8| **except 



as before excepted, and subject to the bidldiBB- Icaii 
thereof granted or to be nanted as afinwaid. in 
were several renewals of the lease of 1800 op to the ! 
June, 1834. The last demiae for twenty-one jt 
which will expire in 1850, is now duly vested in] 
tinghall and others, one set of the lessors of the {Wi 
named in the ejectment. The dajr before the aef 
demises in the declarations in the ejectmoit, posM 
was demanded by the lessors of the pluntiff of 
tenante in possession*. There have been sevrrtl it 
since the granting of the lease of 1786. The case i 

Sroceeded : — " If the Court is of opinion that theleis 
nne 26, 1786, was void, or voidable, and hu In 
avoided, and that nrither that lease nor tuj ti I 
matters aforesaid haw given the defendant a kgtl 
tersst in the premises, sabeisting at the tine of 
commencement of this action, and that the Ststntt 
Limitations is no bar to the recovery of the pUnl 
then I direct, that the verdict continue as found &c 
a particular demise, and for the defendant on the n 

* In a former triil of Doe d. PeiminftQii v. Bamtt, 
ejectment wss broogbt without notice to qnit or danani 
posMsnon; and, after argnneDt at the Sttii^ in Buet 
MichaelmsB Term, Deoember 1 7th, 1847, Lord Dnann, C 
delivered thejodgmentoftbe Court: — 

" In this action the verdict was entered for the idaA 
and a mle was obtained to enter the verdict for the pUu 
either on the demise of Pennington and otben, or of tM C 
and Chapter of Canterbury. 

" The lessors of the plaintiff, ]?ennington ud otbco, I 
r^ed on a lease of the premises from the dew tnidiqter 
them, now continoing ; and, in answer thereto, the imdu 
had proved, that they, and tfaooa under whom thej diimi 
had tteen in poiaestion of tlie premises in qveftioo unce ' 
^ear 1786, claiming to hold nnder a lease (ranted intlatj^ 
jointly, by the dean and chapter, u owners of the tennra 
fee, and by Henry Penton, ai their lessee of a tna. [* 
extinct), for ninety-nine years, and that they bad paid 
to the desQ and chapter, and to Penton'a auigiMe, tht n 
reserved anch lease i and tb^ produced the atat. 14 Geo, 
c. xliH, containing a power to grant a lease for Dfaetf-n 
years, and contended, either that this lease waa ™>^o^ 
not, ib»t a tenancy from year to year bad been cnttei 1 
not determined, or that the plaintiffs were barred by IfaS^ 
of Limitations. 

" The plaintiff contended that tbe leate was void. ■ ■ 
cordii^irith tbe pofrer: that no tenaiicyfh» P^^V 
bad been created by the annual payments of rent to Wd< 
and dii^ter, becanae a coiporation aggregate 
except ander seal ; and that the payment of rent t« tbe at 
and chapter prevented them, or their leaoee of the rereiBi 
from bdng barred by the Sututa of Limitationi. 

' • The plobtiff would not be entitkd to enter tbe verdict 
himeeir, nnleaa he establidied each of these three poiw* » 
favour ; and we think it more oMuntent with justice to ann 
from giving any o[^on on the validity of the If"**' ^ 
creation of a tenancy ftom year to vear, because the 
lating to those two pointa may be more clearly M**™: 
hereafter, in cage the qaestion ahonld be again ™**;" 
can be dme from tbe evidence at tbe lut trial, and neo" 
upon tbe present ocaasioii, if thoae two points ore aNUMa 
be in Ikvonr of the plaintiff, aa to which we F^.fl^^ 
stiU, npon the present evidence, the plaintiff wouW » wn 
by tbe Statute of Limitations. 

" The ejectment is brought without a notice '"J^' " 
demand of poaaeaaion, upon tbe ground that the P'**?",^ 
seseioo of the defendante ia wrongful, and ifit 
it waa the same more than twenty years beforru'' Jj*^ 
commenced, and such a continuance of a w""?"'. 
is a bar to tbe action. And this difficulty cannot " ww* 
by the annnol payments, unlets the P^'otiS ^Aauttoaa"'^ 
payments of rent doe under a term, which be """"y^j, 
because the exiatwice of a term hi the defendanU, V^Zgm 
not been determined, would defeat the action. ODtt^^ 
point be daima to take tbe payment! u 
tbe londlord'a title, without admittioc them to VT. 
Uttve tiAt in the leaaat; but this he cannat <lo. *^ 
verdict fbr the defendant must stand."— A« ttmr^ 



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THE JUBIST. 



131 



«tewd for the defend«Dt, as I h»ve above 
^STT' *V,Thiiapecialeaaewa»now«nmedby» 
tar 1»™ -flWHirwM), fop tba plain- 

q»>e*«m is this r«e u» vhrthar there 
«an or doM not eiat sny interat in the defendant 
'^"^iSlJ^ «t 1786. It is a kase gnuted by 
ewwiUon aggregate of lands which 
•■^ J^.fee. U WM granted by them, either in 
intttttt u owners in fee, or in pnrsaanoe 
™^ ywm pTOto than by the private act of Ptir- 
est «f 1774. Supposng it can b« said to have been 
tea bj tlKin in nitne of their interest, still the 
raudut Us nitdei it nothing in the land; for, if it 
«« naiTnid in iti ioetption, but good during the life 
^vhonuaeit, still it became void at his 
oastfa. It he true, according to the doctrine in 
Utiti.i,iiid Lord Bale's manuacript note there 
SpM<«i, alMmu T. Awmbu*. (Cazth.), that fiw the 
-mwmi - nif ia the itit 13 Elu. is to be read « void. 
M^:^ aid thit &fo T. ne .Ststw Owmfiy and 
Am r. &iJam,<nKAti in 7^ Lmeoln CMtge eate, 
fS Rep. a), aid thit Tie BUkop of SaUtbun'* com 
%W_Bi^ S6) ui Bee t. Tie ArdMsiop of fori, (R 
VH),&fi ulhoritin to the same eflbct; yet it 
W RBritd,b the fint place, that it was the 
. 1 m,ud not 13 Eliz., which was discussed in 
«» ; ■< neondW, that it was admitted on all 
*?"*^ " *^ tfut a lease, made by an eccle- 
^DHlMipMAni, if it be not according to the tenor 
***J"|Jn^ BUtntei, u absolutely void at the 
«Ue Mopordeanwho made it; and hereit 
«*y the iwirt, that the dean who granted is 

^ . *H P™*"* ^ "»»y that 
tte JaoFof ITK iw granted by the dean and chapter 
a m Tirt »eaf tharattwt; fiiraltfaoMgh, where a grantor, 
ha^wmjg bUb u mknt ud a power, gruits generally, 
tte Cowfa will premnie, according as the one view or 
tbe fl*fcr w best mpport the grant, either that he 
OMted BBdw the interest, or that he granted under 
tbe p**<r; yei, where soch a person purports to grant 
■■i«r d»^. It cannot be said, tlit heinten&d to 
•mtianrtoeof huiBterwt; and if in such case he 
doa m gnnting, closely foUow the power, his 
" '■T^','??,!*^ "the case of Aw V. TktArck- 
^ Ywi,{GEut,dS). Now,here, the arbitrator 
and chapter granted the lease 
IT* » KfpoKi puiwance of the powers of the 
^Tste art rf 1< (Mud with intrat to axereise the 
cave; t>(KB,tiorf»e,i)o room fbr the preaumption, 
l^tArf SDladiDrirtDeof their interest as owners 
in fee; toeitiLlS Mz. is not in qaestion ; it is 
.qaite ciesr, tist the poirer under the private act has 
■at tocB Uiowed, for there is no covenant on the part 
of tW ioKe to kild; the lease, therefore, of 1786 
liwtp hm been and ia void. It has been said, indeed, 
that Atkm hu been confirmed by acceptance of rent; 
bttjifikttt be void, no acceptance of rent can affirm 
it, er set it ap. (Sidman v. Garth, Cro. Jac. 173; 
At r.Jreiert i B. & P. SSI ; Roe v. Ward, 1 H. 
SkeLiff' ^ T.BtOektrt 1 Doug. £0; Ooodrighty. 
S^JpfWh J^'^i-; Jwob Rep. 324). The second 
fMO^ in ^""^ aasnming the Indenture of 1786 
Ubtsvoit' % whether the payment and accept- 
jitt af icnt has or has not created a tenancy fixnn 
^t^jMr between the defendant and the lessors of 
^TL^^. Now, in the first place, sappodng it be 
r^'T^teaancy may, in general, he so created be- 
1""^ Q oidiDary person and a corporation, yet in this 
'tbe« Mssi» of sucn payment and ac- 

J ralid lease existii^ granted by the corpora- 
^jTother persons ; and, therefore, such payment 
aocptanee, if evidence of a demise, was evidence 
^,^ia jerersion only. But soch a grant by such 

~77^Lord Dennan.'FattesMi, Odcridge, aBdWI|ht- 



an eoeleriastical corporation as the dean and chapter is 
void by the 18 Elia, c. 11, even though granted by 
deed. In tmth, however, payment and aooeptance a 
rent b no eridenee of a demise by a oorporation : H 
is onlr evidence of a parol wreement. It may, there- 
fore, oe evidenoe of a binding contract between or- 
dinuy persona, and yet it b no evidence of a demise 
by a c(ffporation, which most be by deed. Generally, 
all grants made by a corporation must be by deed. 
(Bac. AbP. " Corporation,'' (E. 3); Com. Dig. " Fran- 
chise," (F. 13) ). There were always, no doubt, some 
excepUons, uid they hare been extended by late cases. 
The old rule as to exceptions is in Cary v. JfofAeuw, 
(1 Salk. 191). " A oorporationi^gre^te," it is there 
said, " may appoint a bailiff to distram, without deed 
or warranL as well as a cook or butler; for it neither 
vests nor devests any sort of interest in or out of the 
corporation." The new and extended rule u thva laid 
down, per Parke, B., in Tho Mwor o/ImUmb t. Oar^ 
tow, (6 Uee. & W. 818):— "The old caasi permitted a 
corporation to bind itself b^ contraot not under seal aa 
to certain small thinss, which must of necesnty be done 
without that formality; and this exception has been 
extended by the modem cases to things which the cor- 
poration, by the nature of its eonstitution, must do to 
carry on its concerns." So Rolfe, 6., in the same case, 
sa^s— ** In modem times a new class of excepUons has 
ansen. Corporations have of bte been established for 
the pnrpoee of carrying on tradinjt speculations; and 
where the nature of their eonstitution nas been such as 
to render the drawing of bills, or the constant making 
of any particular sort of contracts, necessary for the 
pai^rases of the corporatiwa, there the Conrti nave haU, 
that they would imply an authority to do those acts 
withmit which the corporation coald not snbast." In 
CkurA T. 3%« ImporkU Oat-Ught and Cote Oomptugf, 
(6 Adol. & Ell. 861), Lord Denman says—" The prin- 
ciple on which the exceptions have been establuhed 
appears to he eonvenienoe, amonnting almost to neces- 
sity." ^nioU V. 7%e Mayor ^Poo9^ (4 Man. & Gr. 
860); 7%« FitkmoHfftr^ Omwmy v. BobtrUom, (fi Man. 
& Gr. 131 ); Payne v. The Strand Union, (8 *^ B. Rep. 
326); Gibom v. Tie East India Company, (6 Bing. H. 
C. 262), shew that the exceptions must not be extraided 
bey(»)d the rule of necessity. It has ever been held 
that no interest in land can pass to or from a corpora- 
tion without deed. (Co. Litt.94.b.; Com. Dig. "Fran- 
chise, (F. 13)). A corporation cannot attorn without 
deed. (BeUan^t eate, 6 Ren. 38 b). Neither can it 
surrender without deed, (uhso^ Me Chnr^wrdm» 
of St. Satiom't, 10 Rep. 66). The eases in which an 
action for use and occupation has been held to lie at 
the suit of a corporation, without any proof of a demiae 
by deed, are no abrogation of the rule ; for, in ttiat 
form of action, no demise, bat only a permission. Is 
necessary. The corporation need do no act, but need 
only remain paaaive. In 79« Doan and Chapter of 
JRoehetter v. Pieree, (1 Camp. 466), Lord Ellenborough 
says — ** A corporation cannot demise except by deed ; 
but the action for use and occupation does not necessa- 
rily suppose any demise. It is enough that the defend- 
ant usra and occupied the premises by the pennisuon 
of the plaintiff ; and a conNnation, as well as an indi- 
vidual, may, without deea, permit a person to use and 
occupy premises of which they aressised." 7%e SoiOk- 
wart Bridge Vompany r. SiUa (2 C. & P. 371 ) and Tke 
Mayor y Sk^ird v. TUl (4 Bing. 76) are to the same 
effect. Wood v. TaU (2 N. R. 247) is the onlv case in 
which it has been held that a demise existed from a 
corporation, without proof of a demise by deed. Bat 
there the point was not argued. [Oderidge,3, — Is there 
any case of this kind in which the cor|)oration has been 
made defendant ?] I think not. {Coleridge, J. — Is there 
not another question in this case, namely, whether the 
plaintiff u or is not barred by the Statute of Limita- 



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THE JURIST. 



tioBi,3&4Will.4,e.27r] It u true that de&nd- 
tmty and thoae racier whom be claim*, have been in 
pcwio— ion for more than twenty yean; but at the 
time this poawarion waa first takes, a ralid lease waa 
in existence, and the dean and chapter were rever- 
rfonen. Toe teTenton haa &Ueii into them within 
twenty yean, and a donand of poeMMum has been 
Blade. The defendant ia, therefore, now a wroqgdoer. 
The plaintiff is entitled to jadgmeuU 

Peacock, (with him Crta^\ for the defendant. — The 
qaestions in this case are, fint, whether the leaae of 
1^86; einder which Uie defendant clains, was oiig^ally 
void ; secondly, whetha it was only voidable, and hu 
beenaetnp; thixdlj, whether aasaming that lease to be 
of no ifttOb, there Imb beam a new tenancy created by 
pnrmeut and aooeptanoe <^ mt ; fbnrthlj, whetiin', at 
all evoita, the plaintiff is not barred by the Statute «f 
limitations. The history of the law renteetinj; leases 
made by ecdeaasticri persons is in Bac. Aor. ** heaaBs," 
(£^) At the common law, all ecdeaiastical person^ 
ownen of land, bad fall power to lease, grant, or 
alien it, as temporal penons bad. Deans and chapters, 
masters and fellows, and aoch eedesiaatical corpotatiMU 
aggregate ag had the whole interest in the land, ni^t 
grant long^ leases for lives or years, or gifts in £e« or 
itaL at their pleasure. Bishops and parsons, and such 
•eclesiastical corporaUons sole as were said to bare a 
qualified interest (wly in the land, might also make leases 
nd grants of the same extent; but Hkey could make 
ao Inssa or grants without the oonfirmation of the per- 
Um who bad power to confirm their acts. Thu b^^ 
incoBTeniei^ the enabling statote, S2 Hen. 8, c. 28, 
wm passed. It enabled these sole corporations to make 
Jimited leases without confiraatiom hy any person. It 
did not prevent them from making, with confirmation, 
leases of any length. It did not apply to corporations 
aggTi^te. This being the state of the law, the state. 
rEliz. c. 19, B. 6, and 13 Eliz. e. 10, s. 1% were passed. 
These are natraining statutes. By them, all eccleHaa- 
tical persons and corporations are restrained from mak- 
ing anr leases, other than for twenty-one years or three 
lives* xrom the time of making the lease, &c., aad all 
leases contrary to the tenox of the statutes are declared 
to be vtteily void, and of noM efiaet. to all faitents and 
pvposea. They fwevent the ac^ eouesiasUeal corpora- 
hoBB from making hnw leases, even with confirmatkm. 
lliey also prevent eeuesiastieal oorporations mr^^ 
Stem makm^ loi^ leases. They do not affect tiw me- 
tiiod of making leases, but only the periods for which 
they may be made. And aa to the period, it hai been 
held, notwithstanding the strength, in the statutes, of the 
voids, in the jiaee in which they stand, that, npMi oon- 
iideration of the whole construction and maniieat in- 
tention of the statutes, the word " void" is to be read 
** voidable," and that leases made contrary to the tenor 
of the statutes, by a dean and chapter, or such ffrrlnaian 
tied corporation aggregate, shall not be avoided during 
the life and conUnuance of the dean who made the lease. 
Th^ are voidable imly, utd not vmd. Then, as to Uie 
aeeoMpunt in thisMss, it has been hdd, that such in- 
fimnal feasea being voidable Only, and not vcdd, as i^fainat 
Ae nueeesor, the anceeaaor may make them good for 
his time; and, although some act must be done by the 
aDCceSBOT to set up the voidable lease for his time, (Bac. 
Ahx, Leases,*' ( H. 2) }, yet that is nothing aeiunst the 
defimdant in this case, because the arbitrator has found 
that the successive deans and diapter have conatantiy 
zeoeived the rent reserved to them by the lease of 1786, 
and it has been constantly divided amongst those who 
mre rentectively entiUed to it. This distribution, be it 
observed, shews the knowle^ and assent of all the 
members oi the corporation, and makes a difference 
■between the present case and some in the books in which 
the confirmation has been held ill, because the dean 
Wtad without the eooiaait of hie duster. In Shep. 



Toiidi.,cI4»onLeaa«,p.28^ Uis eaid.^'Ifatai 
fiw life make a kaae for preara^ and after die, in tUa < 
the leaae is void. So, if a prebend, parson, «r vl 
make a lease fw years not warranted by the state 
this is void by the death of the leaeor, and the racce 
need not make any entry or claim to avoU it. Ani 
all these eases no aeeeptanoe «f rent after will afi 
sndi leases; for a kaae which is void cannot be ( 
firmed." But it is alao aaid in the same plaee, "Otl 
wise it is in cases of leaaea for years, made by deau; 
chapters, as to their aaccee8or% wboi the leeata an 
warranted by the statotes. la these oaeee tiu tea 
anee oi the rent by the ancceascMa will make g09i i 
lease, at IcMt for theiT time." Theae are aathoDtiM 
shew that the lease of 1786 wae Tf^daUe only, and t] 
ithaBbowoonfirmed. Itia aaid, however, ttiatJH 
wum T. OorAl (Cro. Jae. 173) ia an antlunity eipRa 
in p<^t againat the defe&dant. But in tut tm t 
grant was of an inctwporeal bereditamenL 11>e« 
method of granting auenia by deed. It has been du 
that the restnining atatutee of 1 Elia. and 19 EUa 
not apply to the method, bat only to the period, ef 
grant. Ttiis distinction b^weenthe giants of eorpa 
and incorporeal hereditameoUa ia p<&ted oat. (1 
Abr. Leases,** (U.)). The doctrine U £m v. i 
Atxkiuim of York (6 East, 8«) ie alao qooted agai 
the defendant. But that caae ia im^ so abadete u 1 
been reprearated. It is only held there that the f 
sumption cannot be made to the prejadiee irf tba ha 
In Sagden on Powesa^ 7th adit., voL 1, p.^ tUiQ 
is cited with the same reaDm^ion as to the pi^&e 
the appointee. Upon the whole, then, in tba omb 
npears that acceptanee of rent is not so moeh eritai 
of a new lease as a confirmation of the old. [PtfKa 
J.— In the indentura of 26th December, 178^ Pot 
aasigBe to tlie &and«» all the manoar, exee^ tkepi 
mises in i|ueati(» in this conae. Then then 
render by the Brandons, by wfaidi they poiv^' 
surrender all the manor witbont exception; ana at 
is a re-grant to them. But ttiey bad no interest inuu 
premises which they could surrender, and tbe}r tw 
nothing in these premises by the re-grant] Tliat e 
the origin of all the difficultiv. But the solntHO is . 
favour of the defendant. It may be argee^ "» " 
ease, that the soeeeaaive deana and chapter w« ca 
firmed the origin^ leaae by inetmme nt <'»"g f ", 
for they have made an exception and leeei ■ 
eU the anbeeouent leesea to other perscei^ of 
rent due to than under the leaae of 1786- ^ 
in truUi, there is no need of a confirmation wA 
seal. Acceptance of rnit is, as has been shewn, «» 
firmation of the (»iginel lease. A corporatioa n a 
obliged to seal on receiving money. As to the tbi 
qnestion, even if the Court diould hold that th« /"Pf 
leaae u not set up, yet payment and receipt of not 
evidence against the corporation of a new tena^ oti 
year to year; and, if so, no notice te quit haa Kj 
given, and the defendant is entitled te lewy^^vj 
Aeetiy T. Tkt XmmAi Gq^U^ amd Coh Omf^ 
(6 Adol. & EIL 840), Fktteson, J., «>P»^LS 
^That a person paying rent te a oorporatwn beeoiw 
by tiiat only, their tenant from year to year. iv» 
ndm. J.— Haa not that part been questioned, 
Damati^ C. J.— No; H is there ruled, tiiat wM« 
corporation does an act which miriit be dona 
form, and others act as if it were done in a 
then, as between the corporation and those P*^*^-] 
is to be presumed that the act was done in ^^S^JV^ 
If a conioration reoeivee rent, is it not ^^^PPffZl' 
saying that it did not grant a lease in a *f|l, 
Wood V. Tat€ (2 N. R. 247) is an authority tW^wj 
corporation might distrain. But if so, there ^^^^-^ 
tenancy. As to the fourUi question, if the d"?"^^ 
has not received rent, how is- the ^aiatiff "^JZ 
Statute of Limitations 1 HewoaidcaUtheieo^'^ 



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THE JITKIST. 



^TJ^ST^ »»oifii»g thftt statato. Bmt if it is 
»fc«ttatpnpo«, it ■ rent for aU. The plaintiff 




^^^^^^ Th« nweipt was either as for rent 
W— ft- " iwmittrithttthe old lease is confirmed, 
•wJjBiie, and ia itill oatrtandinr ; if not 
■* vm^wBStrtateiiflimitatioiuappUeB*. Ineither 
^-1, MtiMWcodutmiuthmiBdnmit. 

««™^,Q.C,i,plied. ^ Chr. MA; evft. 
' *^^Bimi,C.J,iioirdeUTered the jadgmentof 
Cwlr-A pan ttmj ^ints were made upon the 
~icataQiiiaM; but, in the result, the qnestion 
& nttrr of the rerdict depended wm, 
r ^Dnnud .Clu^iterof Canterbui^ had, by 
ofiat, idopted ind eonfinned, as against them- 
t hi iNNof 1786, « cfetted a tenancy from year 
tmyvmr, 'vUdiwunotdetennined when the ejectment 
!■» h—^H Ibt facts which raise the only qneetion 
"i^jfcrMtodetenmnewe rery short. 
17m, the Dem ind Cbaptcr of Cantarbnry, (act- 
K tMejmffmti, nndtr the aathority of a pnrate 
"riw«),tigBtlttrwith Henry Penton, granted 
» «f pnuMi, inehdiog those in qnestion, for 
ym, FMBTin* 8 rent to the dean and 
mi nstliff not to Henrr Pcnton. 
( mtt We been rcgulsrly paid down to the 
^ t^pK^dhigi in qacstioD, and bare b4en re- 
ar tbi lam end thdr flKcesson, fatclnding the 

^^e^Bponthesfgament, that the power to 

■wMt been ponoed, and that the lease of 

«*«l/TOidaHe,ifnotYoid. The leasoie of 

tf cwte ded, tint it was absolntdr Toid; 

» MMtnt^ that it wis Tradable only by each 

"7 *P "j Init that it was capable of 

1" Bf than n neeemon by payment and 

_ __ it; and that, at all events, 

M^rt«ay i>B«i,the»te8ptiaoBof lOTt ciestedatenancy 

W aetermittiHe only by notice to quit. 

*«»MH!rfrom year to year, the 

2* plinrtiff contended, that, in order to esta- 

..^.y r?"?' " hy the dean and chapter 
■^•ewHs henewn. 

5 ^ *"y po^tire opinion 

» to tte hwe rf 1786 bany Toidable only orabeolutely 
w^^j*w«^e»« If absolntely roid, ae contended for 
"'Pwntf. the payment and receipt 
I ^-^j^T!^ 7* against the dean and 

tb mLi^^ *** y***"' 

j.m,^ U^^ """y payment and 

**' " the ease of a onrpontion as 




/ 




tw-wL^T - " pwrnmed against 
. Ml been done that was neoes- 

I Wiidi» contract upon both parties. 



sdrantMe they wonl^ hsTo 
If tWewtnct had been regolftily made. This is 
y *^ moasteat with the rule, that, in ge- 
■ < npostini can only contract by deed ; it is 
JBiByairaBiDption against them from tluir 
^^titjhn eontraeted in such a manner as to 
ripoa than, wbetber by deed or otherwise. 
^*M iit a«m of any deeisian or anthofity 
Kttiitvef the ease. 
Htltlwi«ri;86 was Toidahle only, it is elsar, from 
AtMkoliiidlsdon the atgnment, that U was set 
wf ifmAiteeBmn dean and diaptar by aecept- 

V m ndntud rtefat, there is no demise by the 
4Miadet^t« in the declaration in this esse; but 
thJnii/ (he plaintiff oontend that the place in 



* See note, p. 120. 



Saestitm was demised to them bv leases, first in 1789^ 
len in 180S, and so <hi, the dean and chapter not 
being, at thoae times, bonnd h^ any lease, to those 
nnder whom the defendant claims, by reason of tba 
void or ToidaUe nature of the lease of 1786, But 
those leases, under which the lessors of the plaintiff 
claim, were all made "nMtet to file building ha$ea 
aogramted;" therefore, the lessors of the plaintiff «ui 
be in no better condition thui the dean and chuttav 
wonld he, supposing the action of ejectment to hare 
been brought on their demise*. 

We, therefore, upon the whole, are clearly of opiaioK 
that the Terdict in this case ought to be entered for the 
defenduit. — Judgmmitfar defrndanU* 



HILARY TERM. 
Dob d. Vinoob s. Nicholls. — Jan, 13. 

In meetmmt by the Devitee under a former JViU againtt 
the Devuee undw a tubtequent Will, a Legatte mnder 
the former Will i$ a ampetettt Witnetii far ihe Ltuor 
of the Plaintif, fy Stat. 6*7 Viet, e. 86, 

Ejectment. — The declaration contained two demises; 
one by Stephen, the heir, another by Israel, a deTiaee. 
On the trial, hdiore Piatt, B., at the Spring Assizes fov 
Cornwall in 1847, it appeared that the testator was <aie 
of several brothers and sisters : the lessors of the 

Elaintiff were two of the brothers, Stephen claiming as 
eir, and Israel aa devisee, under a will made the 8th 
September, 1842. The (kfendant was a nephew, and 
elumed under a inll made in 184^ irtiich it was cod- 
tended was invalid, beeanse ibt testator was at that 
time insane. For the lessor of the phuntiff, William 
Laurie was called as a witness. It was objected that 
the first will beaneatbed to him a legacy of 3601., to be 
paid within twelve months after the death of the tes- 
tator, and charged the same upon the lands of the tes- 
tator, and, therefore, that he was inadmiauble as s wit- 
ness. It did not appear whether there was personal 
property snfficient to pa^ the legacy. The learned 
judge allowed the obiwtion, and a verdict was girai 
for the defendant. In the following Easter Term, 
(April 20), 

Crowtler obtained a mle nisi for a new trial, on the 
gnrands of the improper rejection oi evidence and the 
verdict being against the evidence. 

Montague Jmitk now shewed cause. — If the seoond 
will was got rid of, the first would stand ; and the witnesi 
was,therefore,iBeffieet,pluntiff in thecaose. Asecond 
mortgagee was incompetent before the stat. 6 & 7 Vict. 
c8&. ( AMd. Oiahbert r. Bamford, 1 1 Adol.& £11. 786). 
[He also cited £&(»rv.i>aiMr, (7 Mee.&W. 235)0 The 
witness is within the words of the enacting part of tha 
statute. The question is, whether be is saved by the 
proviso t He has an interest in the real estate, to the ex- 
tent to which the legacy bequeathed to him is charged or 
chargeable upon the real estate. [^Pattemm, J. — In 
Sage v. JRobineon, (12 Jur. 1064), it was held, that a 
person who had agreed to share with the defendant tiie 
costs of the defence, was a competent witness underthia 
statate. Coleridife, J.— The words (tf the statute an 
veiy strong. Every person ofllered as a witness may 
and shall m admitted to give evidence, . . . notwith- 
standing each person may or shall have an interest in 
the matter in question, or in the eveut of the trial of 
any issue, matter, qnestion, or inquiry, or of the w^t, 
action, or proceedings in which he is oflBBred as a wit- 
ness," with the exception (among others) of "any 
peisoB in whose immediate and individual behalf anj 

* Upon inqairv, the raporters have asoertniwd that dm 
WM a dmitse bj the dean and lAapter in the dedantion, sf 
ststed, ante, p. 119. 



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1S4 



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metion may be brought or defended, either wholly or in 
part.'*! A man may come in as a friend ana make 
mmaeu liable to costs, and yet the action is not brought 
OD his behalf. [ fKt^Afimn, J.— The statute applies to 
penons who have an interest, and renders them compe* 
tent, unless they are within the proviso.] 

Omnbr, contr^ was not nllea npon. 

Lord Demiuit, C. J.— -I have no doubt that the wit- 
ness was competent. 

Patteso?;, J. — It is impossible to say that the wit- 
ness had an immediate benefit, though the action is for 
his mediate benefit. 

CoLERiDOB and WiaBTMjLN, JJ., concnmd. — BuU 
a»olutc 

BaaATnu. — In head-note to Holmet r. Tht London and 
SoutA-wattm RaUvKtif Con^Mmy, for pluntiff, read de- 
fendant. 



BAIL COURT.— MiCHAELHAS Teiui. 
Gat v. Hall.— JVot). 14. 

Warrma ^ Attonujf^Attutatioiit^-Seii. ^ I 2 
Viet, e, 110— JSettiiiif aneUfor Weaa of Omtieitratvm, 

7%e ^Meatatnm to a Warrant ofAttom^, wufer Sect. 9 
of the 1 4l 2 Fiict. e. 110, tm tn the fmrnehtg Form : — 
**Sigtiedftealed,anddelivnvdfytAewaid^ff." (the 
XhnndantJt "in mjf pretence; and J declare mytelf 
to oe Attorney for the said H. H, ; and that I srAteribe 
Name as such Attorn^. ( Signed ) Q. 0., Soli- 
citor:*' — Heldythat this was a suj^cient CompHaneeunth 
the Terms of the Statute, 

Held, also, that it need not appear on the Face of the 
AttestatioUy in express WoraSf that the Attorney at- 
testing the DefendanCt Signature attended at the De- 
fendant's Request^ and that he teas named fiy him. 

Senile, that the Adoption of a Person Iw the V^endant 
as his Attorn^ wmdd s^fke, akhoygk not nominated 
ly him, 

where certain Goods wtre vetted in TrvOets for the 
Benefit of infant Chil^bren^ the TruiOea refusing to 
actf upon which the Grandmother, mtk whom the in- 
fant t^ildren wn living^ took Part away and sobered 
a Portion to remain in the Potsestim of the Step- 
^ahw on his giving a Warrant of Attorn^, the Court 
rented to set aside the Warrant of Attorn^ on t/ie 
Ground of W ant of Consideration. 

QueerCf whether the Court will set aside a Warrant of 
Attorn^, even where there appear* to have been no Cbn- 
sideration? 

This was a rule calling on the plmntiflT to shew cause 
why the warrant of attorney, the judgment signed 
thereon, and all subseq^uent proceedings, should not be 
set aside. The following were the facts as they ap- 
peared upon the affidavits: — In the month of January 
last, the defendant married the plaintilF's daughter, 
who, at that time, was a widow with three children 
by a former husband, carrying on the business of an 
innkeeper. Previous to the marriage she was possessed 
of certain furniture and household goods in the way of 
her husineu, then on the premises in whidi die rest! led, 
together with a sum of money in the Brecon haak. 
It was proposed that a settlement should he made at 
the time of the marriage, vesting this furniture, &c. 
in trustees for the benefit of the children, allowing the 
defendant and liis intended wife the use thereof until 
the youngest child sliould attain the age of twenty-one, 
which was accordingly done. Shortly afler the mar- 
ri^ the defendant's wife died, and the defendant still 
continued to occupy the house aud carry on the busi- 
ness. The trustees never having interfered in the mat- 
ter of the trust, the pluutifF claimed, on behalf of the 
children, who then came to re»de with her, part of the 



property then being in defiendant^s house, which i 
took away, but consented to allow the defendant to 
tain a portion, provided be would execute a wtrran) 
attorney, which he accordtngly did in the montfa 
March luL The warrant of attmney was trader M 
and the following was the form of the attestationi 
" Signed, sealed, and delivered by the said Hemy Hi 
in my presence ; and I declare myself to be ath»i 
for the said Henry Hall ; and that I subscribe { 
name as such attorney. (Signed) George Overt 
solicitor, Mertbyr." In the month of Hay laat, i 
Sheriff of Brecon seized and took posseasion of ttie i 
fendant's goods, under colour of an execution tat m 
rant of attorney given by the defendant to tlie plaint 
on the 1 8th March; whereupon the present rule v 
obtained, against which 

Witles shewed cause. — The ground on whiclit 
present rule was obtained is, first, that the atteatatiu 
the warrant of attorney is insufficient, it not appeal 
in the attestation that Overton, the attorney subsa 
ing his name as the witness, was expressly named hj\ 
deKndant, and attending on his behalf, within the me 
ing of the statute. In reply to which objection il 
submitted, the statute itself will be found to contaj 
complete answer. The 1 & 2 Vict. c. 110, s. 9, enai 
" That no warrant of attorney to confess judpnent 
any personal action given by any person shall be 
any force unless there shall be present some atton 
of one of the superior courts on belialf of such pen 
expressly named by him and attending at his reque 
to inform him of the nature and effect of well wim 
of attorney before the same is executed." Tlien com 
the most material part in reference to thii 
The section proceeds, " which attorney shall iwacn 
bis name as a witness to the due exeeuU<Hi thereof ai 
ttiereby declare himself to be the attorney for tbe m 
son executing the same, and state that he snbOTib 
as such attorney." Here Mr. Overton haa dtdin 
himself to he, and subscribed himself as, sucb attone 
within the express meaning of the words of the s^" 
A stronger argument than this cannot be usert, v 
that a warrant of attorney is an instrument lecogii^ 
by the common law of the land, and would be vshd 
not attested at all. It is only the statntoiy enactmei 
makes it invalid if not executed according to to pn 
visions of the statute ; it surely, then, cannot be neee 
aary to do more than the statute requires, the tenia 
whicli having been complied with here, it is mbmitt 
the objection entirely fails. Another objection w 
that it did not appear that the attorney named n 
selected by the defendant. There are numeroufl cai 
in which it has been held, tliat even where "^estw™ 
iias been named by the opposite party, if adopted by i 
defendant, it is a sufficient compliance witli thesUW 
Joel V. Dicier (5 D. & L. 1; S. C, 16 Law Joan 
N. S., Q„ B., 369) is an authority for this poa'" 
The question in all these cases is, whether the tWen 
ant did, in fact, adopt the suggestion from the imo' 
ledge of the attorney. The Court can 'ep«?«S* 
confidence in its officers to give them a 
such matters where the only object is, 3 
ant should not assign his property without hMKWiro 
what the nature of the instrument is thathe w sm"' 
execute*. As to the third objection, which la tp"* 
relied on as being to the merito of the case. viz. tii»" 
warrant of attorney is bad, being """"i^lS 
consideration, it is submitted, that, on the 
sufficient consideration appears. Even 8"PP^°*^^g, 



*Tbe greater portion of liie argument on 6a» P^~^ m 
tedt asthe jadgiiwnt,aBwillbeseeD, didBOtpToeM«(" 

point. 



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THB JURIST. 



125 




taAn^ Httiiig ■ode a wtmnt of attonwy, an ool- 
iaetad in 2 ClutL Aith. 880. None of them, howerer, 
tvm goM the logth d Httinz it ■nde umply on the 
pwnd of tiw vtnt of eonriwntion ; in sdaiUon to 
vkacby Qie WTUt of attoney being an instrument 
ml, and in ^eet « d«d, there is a plain dis- 
. het w — a deed uid wnple CMitiact — the one 
a eomfchmtinn, the other not. If applica- 
cfemittcd to impcidi the ralidity of a war- 
XMft of ittainejODifaM pmndLtbe Conrt would be 
oaafnnallj oecopied b ttTin^ whaL In fact, had al- 
txrn eoBtedtd on the pui of the defendant. It 
ntuDtttcd, tba^ nnlen a eaae of fraud or 
an bt nude out, the Court will not make 
Twl* abealnte on thii nouid. 
gr —I, IB sapport of vx mle.— It is submitted, the 
: rak mv* be made ^Molatc. The attettaUon is 
bad. Vo case has been cited, by the opposite 
to fhew thit it is a good aticatation. It may, 
dbff^ be tika for muted Uiat there is none. 
tt m the Btention « tbe act in requiring an at* 
litalll Ckadj.ia order that the Conrt might 
tedtoaifrom ilie instrument itself that the 
i«f tk ititnte had been complied with. In 

^ t.BOmi, {9 Mee. & W. 660: S. C, 1 Dowl.. 

K-S^643); Bktj.Barim, (10 Mee. & W. 078; S. 
C 2 Do»L,S S,«4); ItwiM V. PoppUUm, (6 ft. B. 
JtfP IP; &G, 13 law Joum., N. S., Q. B.. 1), 
■ tbe fMtioii aroae as to the sufficiency of the 
tkn, it qipcared that in each case tbe attesta- 
ezpm^ Wed that the attorney attesting had 
*sfimjm«A at the request of the defendant. 
fc^fiOr.linW, (5 D. & L. 420), Erie, J., says, in 
j» to the ew of Zeim t. Lord Kamnfftan, there 
lt^'*lhiirebadoecauon Tery recently to look 
•"■^siilfBlly conear in the decision there 
U." neattotatian in that case was, " Sbmed 
»e fwweof H. attorney for the said 
X^^^an^apm^ named by Mm, and attend- 
^^mtbi nsjtf^" Aj to the second objection, there 
M»WM'»iiineiBhiation or adoption at all. In Walton 
Zl^Tt^aI ^' ^- Tindal, C. J., says, " If 
«V««iiJ eipreas adoption by the defendant 
V 4l2^""'W<»Mr»tliat will suffice." Nodonbt; 
^*^ ™"'wrwig: all that appears is, that the 
■^Mj ittiBey'i clerk told the defendant he must 
^■"^"■ftipieaeiiceof an attotney, and takes him 
ilii ndghkourhood. [He also cited, on 
™y«yj9^T.A£wi, (8 Dowl. P. C. 242 ; S. C, 
**•«); Gfipptr r. Brittowy (6 Mee. & W. 
^B>. jiiurti;r, the warrant of attorney must have a 
w»toA ewyfeuia t» mpport it. Although there is no 
?"^,™ » »w™nt «f attorney bas 

r^^,ir «i this eround, it is quite clwr 

^~^^™»»ooid interfere, bv setting it aside, when 
" .^*r "?gpw to have been given without. [He 
"**^^2CtltAith.8B0).] Cnr.adv,tiat. 





_™^JJmic«ding8; There were two objections: 
iSL? • attestation; and, secondly, 

|iw«iiB»coBnderation forits being given. The 
. ^"W to IM warrant of attorney contains only a 
juT'"* ^ Overton, the subscribing witness, 
5 '"'"■-"Sipied, sealed, and delivered by the said 
at^aiS^ui mypiesaice; and I declare myself to 
**J^ for tbe asid Henry Hall, and subscribe 
^« « neh alfomey." But it does not appear on 
"•we of it tiat he was expressly named by, and at- 
^au OB bduJf of, the defendant. It was contended 
to hsTe done so. There were no cases, 
dted daring the argument, nor do I find 
Of, B iltieh it has been held, that it must appear on 
ihnttaatka; althongh the cases decided, wluie the 



qnesti<Hi of the insufficiency of the attestation has arisen, 
seem to have bad these words inserted. Upon looking 
at the act of Parliament, it does not appear that these 
words must be inserted. I think, therefore, I must 
hold that the terms of the act have sufficiently been 
complied with. Then, with respect to tbe question, 
whether it sufficiently anteazs that Ovtfton was ex- 
pressly named by, ana attended on beludf of. Hall, that 
depends on the statement in the affidavits. THls Lord- 
ship then went nlnvtely through the affidavits pro- 
duced as to this ftet, and after expressing his satisfoc- 
tion that it sufficiently appeared that the nomination 
and adoption were satisnctorily made out, proceed- 
ed: — ] I am slow to believe the assertion of defend- 
ants, that no attorney was named on their bebalf. It b 
a matter so well known in the Profession, I am always 
disposed to think, that, where an attorney is applied 
to, ne does his duty. I must say, therefore, that the 
attestation is good in form and fact, so far as the act of 
Parliament is concerned. Then, as to the other point, 
with regard to the eouuderation, I can find no case, nor 
was any prodneed on the aivument, in which the want 
of conuderation has hem held to viUate a warrant of 
attorney. There are several naei of fraud, illegality of 
conuderation, &c., in which the Court have set them 
aude: one case, I find, where a man executed a war- 
rant of attorney to a friend, to whom he was not in> 
debted, to protect his property ; and a question arose 
whether it could be avoided, on the ground of want of 
consideration. That was not an application by himself, 
however, but on behalf of his creditors. If this had 
been umply a question, whether or not there had been 
any^ consideration, I should have had great difficulty in 
saying, that, upon that ground, the defendant would be 
entitled to have the judgment set aside. There wascer- 
tainly some cdonr mr giving the warrant of attorney, 
although, periiape, not sufficient to maintain an action. 
The defendant was in possesuon of the furniture, and 
the plaintifi' suffered him to retain a portion on hisexe- 
eutliu the security in question. Upon the whole, 
ther«(ne^ I think the rate most be discharged.— iMls 

Cbobi^ a IVraper, «. Thb Port of London AsstnuitcB 
CoMPAMT, — Nov. 2S. 

Paitper—Cotts of the Dof—Staj/ing Proceedings, 
Where a Pauper matet D^auU in proe^img to Trial, 
in pursuant of Notice^ taid ie rendeat without the 
JuriedictioH of the Court— fftid, that^ in an AppHea^ 
tion for the Chat of tk* Ik^ for not proceeding ta 
Trial, the DrfendoMt wa$ entitled to mate the Pegrment 
of the Coata a Oondition precedent to further Pro- 
ceedv^e. 

This was a rule calling on the plaintiff to shew 
cause why he should not pay to the defendants the costs 
of the day for not proceeding to trial pursuant to his 
notice, and why, in the meantime, all further proceed- 
ings should not be stayed. From the affidavits, it ap- 
peared the plaintiff sued in form& pauperis, and was 
resident out of the jurisdiction of the Court. 

Bumie this day (Nov. 25) shewed cause. — The Court 
will make this rule absolute, with a stay of proceedings. 
There is no authority for making the payment of costs 
a condition precedent to farther proceedinRS. (2 Chit. 
Arch. 1297). 

PoiMtr, contea.— It is submitted, the rule must be 
made absolute. The reason the Courts have refused to 
stay proceedings in an action until the payment of the 
costs of the day for not proceeding to trial have been 
paid, is because, in general, there is a mode of enforcing 
the costs open to the defendemt by attachment. (Per 
Parke, B., Aime v. Chinnoct, 8 Dowl. P. C. 736). But 
here the plaintiff is a pauper, and residing without the 
jorisdiotion of the Court. The defendant, therefore, has 



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no remedy opot to Mm to Teeorer the smonnt of these 
costs. 

Pattibon, J. — I thmk this fact takes the case ont of 
the ordinary course usually pursued in these cases. 
The rule must, therefore, be made absolute.— Aife 
oftioAifs. 

COURT OF COMMON PLEASv-Mich. Tbem. 
Nabh «. Bbown. — Nov. 17. 
Pleading— MaUrial Averment of Hme—VideUcetf Ef- 
fetXof. 

Deftf.— 7%« lidmSmt pleadetl, that, after Cmue of Ac- 
tion, and bmre the Gmmenement tf the Suit, to wit, 
on the 22nd Nowmher^ 1843, a Petition for thePrdee- 
tion of the Defendant from Proeett teat dufyf and 
aeeordina to the Statute in such Case made, pretented 
ly the Defendaia to the Court of Bankn^itjf, and 
thereupoH, aftervardtt and before the Commeneement of 
the Suit, to wit, on the 29M Janway, 1841, a final 
Order for Protection and Dittr^ution was made, Sfe.: 
— ffeld, on tpeeial Demurrer, that the Plea toot good, 
and that the Date of the maHnp of the final Order 
was materiaL and troMrtable, thovgh laid under a 
Fidelieet. 

Debt.— The declaration contained <aily the com- 
mon counts. Plea: that, aftw the aeeming of the 
sereral debts and eaaaes of action in the declaration 
mentioned, and before the oonimencement of this suit, 
to wit, on the 22nd NoTember, a.d. 1843, a petition for 
the protection of the dei«ndant from process was duly, 
and according to the statute in such case made, pre- 
sented by the defendant to her Majesty's Court of 
Bankruptcy, and thereupon, afterwards, and before the 
commencement of this aait, to wit, on the 29th Ja- 
nuary, A.D. 1844, afinalorderfor protection and distri- 
bution was made in the matter of the said petition by 
Sir C. F. W. Knight, a commissioner of the said Court 
of Bankruptcy duty authorised in that behalf. And 
the defendant further aaith, that the said several debts 
and causes of action in the declaration mentioned, and 
every of them, and every part thereof, were contracted 
before the date of the filii^; of the said petition in the 
Biid Court of Bankruptcy. Verification. Special de- 
murrer, assigning for causes, amongst others, that the 
idea does not disclose any sufficient answer to the ac- 
tion, for the final order in the plea mentioned must be 
presumed to have been made according to the statutes 
m force immediately before the commencement of this 
Boit, or at the time of the plea pleaded, viz. the' 5 & 6 
Yict. c. 116, as amended by the 7 & 8 Vict. c. 96, and 
that a final order under those statutes only protects the 
person of the defendant from arrest fbr the debts and 
causes of action before the date of filing his petition, 
and is no bar to an action for recovery of sucn debts; 
thsL if the defendant intended to set up as a defence a ' 
final tnder made after the pasring of the 6 & 6 Vict. c. ' 
116, and before the passing of the 7 & 8 Vict. e. 96, the 
Mid plea should have distinctly alleged that the said 
final order was nude after the passing of the former act, 
and before the pasting of the latter act ; that the said 
plea is uncertain and ambiguous, and the plaintifi^ can- 
not take a safe issue thereon, for that the defendant 
mkht prove the said plea by the prodnction of a final 
or*r made after the passing of the 7 & 8 Vict. c. 96, 
which, for the above reasons, would not be an answer 
to this action ; that it is uncertain on what find order 
the defendant relics, or nnder what statutes the plea is 
pleaded ; and, as the dates in the sud plea are all laid 
mklera videlicet, the plaintiff cannot teU withcertiunty 
when the said final order was made, &c. 

C. PoOoet, for the plaintiff,— The plea is bad. The 
qnestitm tnmi upon the construction of the fi & 6 Vict. 
0. llfl; «. 1, ^ and la as amended by the 7 & 8 Vict, 
e. 96m 4 and 22. Undonbtedly, if this plea Is to ba 



taken as pleaded nnder the formn st^te, it is a gw 
bar; but it la not, if the final order rel^ npon iq 
made nnce the passing of the latter statute, as bocIi S 
order protects the person only. ( Toomer r. GiiuieU, I 
Law Joum., N. S., C. P., 255). An order for the pn 
teetion of the person is the only one which can nowb 
made; the power to make an order for distriitatioaii 
longer existe ; and the statement in the plea, th&t thi 
was a ** final order for motection and distribntiim,! 
cannot alter its legal effect, [^Willicmt, J.—Tit 
statement would shew that it was intended to b 
pleaded nnder the former net.^ But, on the anflori^ 
oiPUa^r.Boria vai Jaeobt v. ^de, (17 In Jam. 
N. S., Enh.,249}, nich s plea would be proved by tb 
production of a final order under the latter ntnti 
Annming those cases to have been rightly deddcia 
this plea to be ^ood in substance, still it is bad in wa 
and the objection is pointed out by speci&l demniie 
[ WUlia$ns, J, — If the plea could not have been p»™ 
as you contend, by the production of an order mat 
since the pasHing of 7 & 8 Vict. c. 96, the date ii n 
terial.] [The learned Judge referred to fuKCv.fuM; 
(3Barr.l729).] The date is laid underavidelteet^a 
this is not like a statement of time the essence of 
contract, in which case, though Imd under a vid^i 
it is material and traversable : and, fortber, the Om 
will not take judicial notice of the time at whieh 
act is passed or cornea into operation ; if the pretA 
time is relied on, it mast be averred with certamtyl 
the pleading. 

Peteredorf, for the defendant— It is conceded m 
the plea is good, if it can be taken as pleaded mm 
5 & 6 Vict, c 116. {Copi V. Henion, 1 C. B. MBV 
The facts stated in the ^lea sufficiently shew that H 1 
so pleaded ; and when time is mentioned in a pltidiK 
it murt be taken to be such time as will anppoif w 
pleading. The Court will take Jadicial notice iriai 
statute comes into operation, and of what ststnteis tt 
force at a particular time. If the dates are materW 
the statement being under a videlicet will not mm 
them immaterial. (1 Win. Saund. 170, note 2; Orm 
awxiv. 5orri*,6T.R.4eO). [CbftwwS J.-S«IW 
the plea would he good under both statutes vwtld m, 
date he material then 13 They are part of the *«np* 
tion of written documents. [Maule, J.-Thw are 
statements of the times when fects happened.] »« 
the plea is good under either act. The case of T«m 
Y. Gingelt can no longer be supported ; ^'or the 7* ' 
Vict. c. 96, does not after the legal effect of the onier 
under 6 & 6 Vict. c. 116. (Jacobs v. Ht/de, 1( 
Joum., N. S., Exch., 249). [IToMfa, J.-Suppos^" 
to be necessary for you to rely on the 7 « 8 yfln 
would not the plea be bad for not shewiiyj tMt™ 
transaction took phice after the pamng of t"** r*J 
The Court will take judicial notice when a bW» 
passed, but not when a foct happened.] 1° ^ ?J 
the plea must be taken to he pUded under theiW 
statute, and the date is material as shewing it to mwi 
and the plea is good, nnleas the tdaintiff can u>«*><fT 
80 for as affoeta the merits, the 7 & 8 Vict c9^"P^ 
the 6 & 6 Vict. c. 116. . . 

a Pollociy in reply, was desired to confine bimWJ" 




the order : and, farther, the Court cannot look ogw- 
the record to decide upon the materiality of tne iw^ 
for the question is, not whether an event b/PP«°'T- 
a particular day, but whether on some one ^^hji 
before a particular day. In Parkineon v. ^^^rZ2 
(2 Blan. & Gr. 329), the declaration stated, th«t»^ 
tofore, to wit, on the Slat May, 1826, by m ^^^^ 
in writing, the defendant's testator agree*^ Tr^i^ 
years from MMnmuMr tiwn next, to ^o^d 
bouses, and alleged for breach, that tkahoa«iH>^ 



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THK JURIST. 






«f tU niit (1830) WW ulmUt, oon- 
gmj te tte acntBait; aad the Court held it to be 
■•■•■jPI^ oeswmi, far not ^Mwing Ui»t two y«M» 
»ext tfUf the making of the woo* 
MMfc BM tlnetd ptTisQs to the omuMsujemeait in the 
"■f; "Mia^eaM theeoobact meand upon the 
MB m Rcori, ii4 tbo iaaa&m of tho videlioet 
pnindind tU itaiEB<nt of the date of tho 
[JTomIi, J^The maiority of the jndgea in 
B to ten tikoagM (fbr than mw no axr 
Otbat the defect vaa in the ahaanoeof a 
at vhea Ui« two yteiB began ; bat it Menu to 
mm tfae defect WW, itikts, tkU U vaa not shewn when 
A^wsit«Misaed. The dedaiation waa bad ; and the 
Ant&«Ctksia^iu]r,iNi{iney be oupoonded in this 
zMkil^rtmofthedate of the agreement is 
'~3tl,b«wwHbtDiii£Seient in bay way, as not 
J ahtn the twe fan mded/'J IHm defendant 
tekecenpcUtd to eertainty as to whkh itatule 
m waem, a, H tbne were two ordem— «ae 
ihtfiatfUdtlHetbeftiBdcrtheaacond. IWit- 
-Ton dm toeoatand that a material 
I lud ndirATidelieet ia not tamHhle.1 
r a atMH. aiat tto this ia a good plw, if the 
nfea fto^a Mid UKk dace npoa the daya npoo 
" muani to hire taken place; and that 

Mtd. Tbe time, thcnf€e«,aeeB» to me to be 
I «vnKit, ind tnvemble. The effect of the 
STieLcJ^ilignotiiecenaiy toconaidar. 
^/.-Itiiak n too. A laatarial arenneDt, 
ihidndv4Tidelket,iBDet be prored aalaid: 
eeaKoTiinB r.BiueM ahewa that a matetiai 
m sa&Hll; illend under a Tiddicct, and 
■a tttTBad, la tu pieaent caae it waa ne- 
~ta be im^iit the traMaetione alleged in the 
--^fha «dcr the kw applicable t« the caae: 
™ m BO ether waj than hj the data, 
^a^a, tha^. nateikL That date Aaws that 
»^ bitam tbe paaaing of tha 6 & 6 Tiet 
^^5?i*'?*8riet.e.9«; ax eoneem the plea 

^^^^ito^J.-I IB rf the aama opinion. Since the 
oaaa ^Jkaa i. Bum, it haanererbeen danbted, that 
« Vwnaremr, when a Tidalieat oontaisa a 
^"™^tl»taTermentia, nererthdeai^ tra- 
I think, dotacoatMn adiijeet po- 
™t<itothedideof the tianwctions, which 
ai bafcnable. The doubt which haa 
""iT^ an inmatcrial avermeat becomee 
•J— withont a Tiddieet. Whether 

'^¥S!^ JLS'^^T OF COHMOn PLEAS 
VJMISK lEGISTRATlOW OF TOTERS ACT. 

(^Meni/>MMea). 

Cerum, ApptBat, Bamlett, Heapondent.— JViw. 13. 

.A^fiy Ao^ltortgtuor in Pomtrim — F rm kM 

1^ nlifS \ '^ m a ato.8jW6,fc7: 18 aae.3, c96; 

&<; wmdBSf 7 Viet, c 18, *. 74. 
S,* MmSer tft BiOd^Stcit^.mtabliM mdm- 

£md,(tit iWrlffw eiany far whitk had ham md- 
to Urn if tin Socitty), to ateure the momtklf 
J^^mad ^ Uf*t ia wa iea j the i^xm Us Skmrm. ^ 
g^tge *^ Mmtgagt, im^ eoaa «f Tkrm tueeathe 
j\fait hrS. m tkt aaoNt^r Piymmtt, the Sooia^ 
L!. jaUr^ ^ ^ nlaia Pmumm tf tie 
l^tsg^ Jnmn wenpm U . B^imd ntmr made 
Safc Will all ypwMidwi; Aattilate^ 
/yajaiaift aa tt« Faor, rfiJ^Maf >^ t*« 




• VBdevCJ., 



fron 



■waiiar raha tftke FirMi,redm»d 4t Mm 40a»— 
Hddt ^ B. hmd met firm Ltmd er Ttummf 
Vaha tf hfthe Ymr^ mhom aU Ckmrgm, wiOim 
the Mtemmff o/Q Stm.ef e.7 i mmd^ tim^^are, wm ntt 
mOkltdf OT Mortgagor m Ptaanmom, to ha ragiattrei m 
a Comatg Votary aat^w 6^7 Ked. & IB, a. 74. 
Gaaaw— At a ooort held uv the lariidon of the liat of 
Tatea Ibr the paridi of Sptingfidd, the 28th September 
1MB. Bobart Bartlett objaatod to the nme vi Gecifi 
BncHM beiiig ntaiaed upCHi the liit of votcra, in reqiaet 
ci property mtoate withm the a^ paridu The voteiv 
Goorge Broc^ ie a member of the aociety called the 
Chelmsford and Eanx Binldiag and InTeatment So- 
ciety, eatablidud under the piDTia<wa of the act, 6 & 7 
WiU.4^e.3S,iawhiefa be held one ahare and a halt 
Each ahaze obligee tiu ahazeliolder to the paymeitt of 
lOfl. per calendar menth. More than aix montha p» 
Tiona to the 31st July, 1848, the Toter became the pnr- 
efaaaer in fee aimftle td a cottage and garden, ralae M, 
per annum, formerly part cf Son fidd, in tbe pariah of 
Sprii^eld, and he xeudaa in the aaid pariah. The 
aodaty adTaaeed the purehaae-money, 6o£, and tha 
Totw mortgaged the aaid cottage and garden to tta a>- 
daty, to aeeure tha paymant liacMniiy doe upon hii 
duna^ Tiz. per nionth toiag the odatanee of tha 
aociety; and, by virtna of the ara mwtMe. the aode^ 
are eatitled, apoa fiUlnn jm^maat by the roier nr 
three a ac ce aa i Ta moatha of uie mount due upon hia 
diarea^ to enter upon and retain poaaeanion of the pr^ 
miaea till the arreaia are paid ; but, until each defralt, 
the Toter is to enjoy the prop w iy . Tbe rotcr haa aoTer 
bean a deianlter m makmg hia p^ymanta. The roCar 
ia cBktitled to redeem the aaid premiaea lh>m the add 
mortgage, bypqrnant of the whole anm which the 
meatnly paynaents npoai hia afaarea will amount to up 
Oa time when the aoda^ ahall be diMdred, witheat 
any other payment of pnndpal; bat aoAlng ia atatad 
as to the period during whloi the aodety ia to ezlaL 
Thefnndaof tha aodety ariaa «nt of tha monthlv pw- 
menta by the membera, and the loads are held for toe 
benefit of the memben, in prop<Hiion to the number 
of their diana. Tbe preaent nine of each diare is 
372. \6*. 9d.; bat there ia no proof what ia the whole 
amoant of the funds of the aociety, or how mudi of the 
funds ia inreated in mortgagee of the property of the 
members, or bow the reat of tbe fnnda are inrcated, or 
what IB the number of aharea^ or what is the number of 
the memben of the aodety. On the part of the re- 
afwndeut it waa contended, that the a r r an g e ment b^ 
twecn &e TOter and the building aodety ia in aabatMiee 
and ^«et a mortg^;e, whai^y tha amount adTaaeed 
aad the intoast were aaeoiaa,aBd made pajaUaW 
aMBtUy inatdmenta. On tbe past of tbe appdlant tt 
waa eontanded, that faumudi aa the j^yaMta oa the 
riiMieaomudtuttngUwfuada of the society are held ibr 
tbe benefit of the members, tbe annual rahie of the 
Toter*8 property ia net diminiibad by the payments 
with which it u diaiged. It was alao oontended, that 
no iateraat was payable on the loan, and the sooieta^ 
had no cldm on tbe rents until the roter had made 
three Bnoceanre defaults in his parents; and that 
there was. therefore, no dia^udifying charge. The 
BevisiDg Barriater waa of opinion that tJie annud value 
of the Toter'a property, viz. Bl. per annum, was reduoed 
by the charge of 1^. per month bdow the amount of 
40a. per annum ; and he eased hia name from the liat 
ofToten. If the Court ahoald be of opinion that tbe 
voter baa a fireehdd iateraat in the oott^ and land, 
amonntiar to 40if. pv ananm, Ua name ia to be r^ 
stored ; ouicrwiae, ft ia to lemdn ensed from the fiaC 
The casea of four claimanta were decided on the aame 
pointa of law, and were eonsoUdated with the prineipd 



JiirH Saijt. for the ^peUaat.^The claimant in 
aiacawfaeB(ttledtoTCia^aadaratrt.aHan.6, e.7. 



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1S8 



THE JTTBIST. 



as a person who has free land or teaement to the value 
of 4uir. by the year at the leasts above all chai:^. The 
deed whenby, as the respondent contoids, this annoal 
value is zednced, the case teeats as a mortgsge in the 
nsnal form: that is the most nnbvoniable view for the 
appellant. But, first, supposing it to be so, the appel- 
lant is still entitled to vote^ as mortgagor in Ktual 
possession, nnder 6 & 7 Vict. c. 18, s. 74. Bnt, secondly, 
this is not an ordinary mortgage. The Bnildlng So- 
cieties Act (6 & 7 WQl. 4, c. 32, s. 3) empowers any 
such society, " in and by their rules, to describe the 
form of the mortgage which may be necessary" &c. 
The rules of this society are not given in the case, nor 
is it stated whether or not the mortgage-deed was in 
the usual form, or whether it conveyed the legal estate 
or not. It appears, however, that the societv are not 
entitled to enter upon the premises, until lulnre of 
payment by the appellant for three successive months 
of the amount due upon his shares. Default has never 
been made ; there Is, therefore, no right of entry at 
present existing, nor an^ sum accruing due, which can 
now be taken in reduction of the claimant's interest in 
the land. And, thirdly, the principal sum advanced 
will nevOT be due, which distinguisnes this from the 
ordinary case of a mortgaj^. The charge upon the 
property is future and contingent, in the nature of a 
T«it-charge or an annuity ; or the appellant ma^ be 
8ud to have a fee simple defeauble upon a condition 
subsequent, in respect of which he is clearly entitled to 
vote, nnder stat. 8 Hen. 6, c. 7. 

Baddelqrj for the respondent. — First, it is sufficiently 
shewn to the Court that the deed in question was a 
mortgage. It is so termed by the Uevisiog Barrister, 
who also states tint them ii a right of entry in the 
mortoagees; and the Court will presume that the deed 
was m the usual form, with the usual powers and inci- 
dents of a mortgage. This is also evident from the 
laoffuage of aecta. 1 and fi of the Building Societies Act 
itself. It is clear that Uie property was conveyed as a 
security for the repayment of a sum certain ; *for it is 
stated, that the mortgagor may redeem upon payment 
of that sum, though no rule is given by which we can 
compute it. What may eventuuly become of the prin- 
cipal is immaterial. Secondly, the case of Motu^r v. 
Baier ^17 Law Jonm., N. S., Chanc, 257) also shews 
that this is to be considered as the case of an ordinary 
mortgage, and that the chane is an immediate one. It 
is now actually operating; the 16«. accrue due month 
by month, and in the course of the year those monthly 
paymenta exceed the whole annoal value of tiie land : 
therefore, the appellant has not a freehold of the annual 
value of 40f. above all chaiges. The stat. 6 & 7 Vict, 
c. 18, 8. 74, has made no reduction in the amount of 
qualification requisite to confer a vote, whether the 
clmmant be mortgagor or not. The same words, as to 
the right of mortgagors, are to be found in the 7 & 8 
Will. 3, c. 25, s. 7 ; and, unless it can beshewn that the 
statute of Victoria makes some difference, no question 
can arise. [fVilliamsy J.— Is that sol The Reform 
Act (sect. 28) is a re-enactment of the 7 & 8 Will. 3, 
c. 25, 8. 7 ; and the 6 & 7 Vict. c. 18, s. 74, ezplmns the 
23rd seotum of the Reform Act.] The sections referred 
to in the three statutes are in el^t the same. Cases 
decided by the committees of the Bouse of Commons, 
on the question of reduction by mortgage, are to be 
found in Rogeis on Elections, 6tn ed., 160. TAe Bed- 
fordshire Committee (2 Lnders, 469) came to a resolu- 
tion that the interest of a mortgage, (which is charged 
upon the estate in right of which the voter voted), 
being established by evidence, so as to reduce the 
value of the estate to leas than 40#. per annum, in- 
validates the vote. To the same effect was the resolu- 
tion by 7%e Middlesex Committee^ (2 Peck, 103); and 
the case of Wetherell v. ifa/^ (Ueywood, Counties, 
14ff), in whieh tiu quertion tumeiiL upon tlu qnalificft- 



tion required by the Game Laws, Ulnrtntes thii p«o| 
But tiie strongest authority to shew the intention of th 
Ijegislature, and the meaning of " ehaiges" in 8 Heii,1 
c. 7, is the declaration which the 28 Geo. 3, e. 36, at 
requires ^e voter at a county election to udc^ "tlu 
he really and truly haa an estate of the clesi yeiri 
value of 40r., over and above the interest of any mm 
secured by mortgage upon it, and over and aboTsi 
rents and outgoings payable out of, or in respeet itf, 
eeXA estate, other than'Parliamentaiy, pubhc^vpir 
chial taxes." It is difficult to see liow the ^ipeQa 
could make that declaration. 

Byleif Serjt., in reply. — The cases cited ftm Roga 
on Elections are not controverted. The monthlj pt; 
ment in this case is not a payment of iDteRtt;n 
those cases, therefore, do not apply, [itfbiils, 
all events, he is to make certam monthly iHtym 
(amounting in the whole to 0/. a year) in niscspiii 
as mor^a^. Do not those payments come witt 
the terms of the declaration required to be nude I 
28 Geo. 3, c. 36, s. 6 7 The ai^tdhuit will hsn 
very good vote when the society is dissolved- but 
can hardly be said that he has one now.] If be 
mortgagor, he is also one of the mortgagee^ bein| 
member of the society ; and the amount of bis inter 
as mortgagee is not stated in the case, nor is it abe 
in what way his qualification is reduced below 4, 
IMaide^ J.— If the appellant wishes it, the esse eaa 
amended in that particnlar.] 

WiLDB, C. J.— The Revising Barrister, I thiok, a 
come to a right conclusion of law, which concluin 
founded on certain facta within his jurisdiction to fin 
and which he has rightly found. It bss bm 
upon us to conuder irtiat may be the foture condiUi 
of these parties, and what cironmatanoes may hereifl 
arise to affect their interests. But it does not iMmi 
me to be very material to do so. The qaestioni^wbi 
ther, on the day of registration, the clainisnt w«i a 
position to be entitled to be registered as a voter. U 
right depended upon his having been in possesaon, f 
a certain statutable period, of an estate in wbicb he ai 
an interest of 40». a year. Now, during that peno 
he had, as a matter of fact, paid 16#. a month in re^ 
of what is termed a mort^e on his estate. 
no doubt, may be of vanous descriptiona;_bnt^*iU 
same time, an instrument of a g^ven form is gew«iu 
known as a mortgage; andlthinktheLegislstaRian 
be taken to have used the term In that its^ 
sense. Then the question is, (as the slat Hen. fip* 
the right of voting to a person having free land or t« 
ment to the value of 40f . by the year at the leas^ «» 
all chai^), what is meant to be included under u 
word '* chai^l" That word appeals to lia^^ r***|' 
judicial interpretation in several instances, and to Wi 
been understood as including interest on a w^ngi* 
As the object of the law was to ascertain that the pew 
derived a certain sum of money from the 
was supposed to bespeak a given situation m soo j 
entitling him to vote, one looks to see thffleW 
ments operate. Now, if a man, as often " 
60*. with one hand, pays 30*. with the o*"*!*} ^JJ 
he cannot be said to have the quantum of 
the statute reqnind as a qualification to '""''.^ 
though these payments may not in one senw bwch 
fall witiUn the description of a charse upon the «w; 
yet they so ftr operate in diminishing t"«.^""'T!,! 
interest in it aa to displace him from that po3ition«i^ 
would entitle him to vot^. The stat. 28 G^; ^ 
did not propose to vary the right of voting, bat to»|^ 
into effect the stat. Hen. 6. Expanding and atau^ 
the word " charges," it compels a peiaon to t*"** "XJ 
or declaration " that he possesses an estate of tW'JJ^ 
yearly value of 40«. over and above the 
mortgage." Since that statute, it is pv'ff^^/jj^ 
that t£s deelantion is a oondition pnoedeat w ■» 



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THE JUBIST. 



^MtiMtodiimasaToter; and if the clamant 
** ^ deckraUon, how could the 
«n*ijBiiti*er«y be was enUUed tobe K«iJrtend? 

itatoteit which do not propose 

JJ^kwbwnftiUTappriwdof a* aatnnofthe 
* ihidi eoniiemd thai right— that 1^ the poeeee- 
5» o( u Mtate of the veariy Talm of 40$. aboTO aU 
*wK"«cpi«i»dbyetat.Geo.3. Saehwasthe 
■^WM^und kotMsdent to the Refonn Act; and 
■•Hill iM my lahiequuit statute has altered it. 
«IU iiaii,igppon that thi« be a charge, stiU the 
* »wt. e . la, 1.74, entitles the claimant to rote as 
SJW*. B«t that statute did not intend to gife 
y ertjUar of & freduld a different right of Tothig 
52 "f.*^ ^ preTiondy had. It left him, in? 
'^■^wtBribj technical difficulties as to the quality 
^saodiM by the execution of the mort- 
ngMtttkmrin; boLMtothequantityofhls interest, 
L 2r~™««flr»hs TO before His being mort- 
* is DO objection to his TOte, pro- 

. WM'.wffiaent peconiuy Intanst in the es- 

^ ^ qnaUfioation. He must 
^» iirt*^idttHion reqniied by stat Geo. 3, 
J«ik»a«jtaigorornot, that he has an interest 
^«s.«jw jj(c«ie finds, that there is a chaige 
.?i J" »l"ch reduces his interest 

Jtsr. I think, therefore, that the 
gwjJ iitaditledtoTote. It appears by the 

^•JJ^imditionfor considering the mortgage to 
'?^,'*!*^ fan sn ordinarr mortgage. The 
■IL »» "> equity, a charge 

ffZ«f!t^''^ P*y J» isentitled 
^ ■«w»ttiH«T iy.dtohiiD; or.auppodngnore-con- 

^^to Ujespmtof the Uw, (which is, that 
-rT hi benefid^ intewst to the 

Z^lJr be entiUed toayote), if he has 
3S!!lS*!?' * " incurred an annual 

Tf thesmmi ralue of it, he cannot be 
. entities him to be 



mid u 



USi^JL .X" <ieciaion of the Rerising 
'™wwSthe«^beconfinned. " 
tti2!4?^CI:!?.*'*«"»nae opinion; andldonot 
tmCmt!^ ™ "rtention of the statate of Vio- 
»w*a Stil^""?""^ requisite to confer 

^^rmmSZl^' ****** P»J^«nU are not a 
tmmi I iL_ ^"^ on pnnctpl^ and upon t^ 

refered lo, they most be 
,",5**%the preaenteWmMl to be re- 



^^yj|»«>iiilt tiiath. i« not entitiedto 
mm Mm, 2 ''"^ **** »ortg«gor in poe- 
Aftnmdju ^® mortgagee, clearly are 
^^'T'Wtfinining the question, when two 
rtrtTT * ™>oW interest in the same 
rflig JJJ* 'ttnisB the rittht of Toting in re- 
t Rr ^ *° equitable, and, therefore, in 
P«»on in actual poe- 



W, in the land ; what tbftt must 

Saa^ H«>*- ^ deelara- 

» G«?, J"?> to make by the stat. 

Wni- 5.- *^ he has an estate <ythe dear 
WSr* I therefore, that, in bo 

■Mb L ffi"* *^ ■ *M land 

L, I . " V «e appellant, and not to be received 
^*«MB««)B» years, and during the material 
"^utbitfer which he claimed to be registered, it 

" ■ Fhis 
that 



^kdnjoetaj in estimating the annual value of 
Mriii It it Mid, that the ease does not shew how t^ 
^^hAmm qualification below 40r., as the ap- 
?w«fetb JDOrtgsgor and mortgagee. The case 



might be amended in that respect, but my Awther 
Byles, knowing how the ftctsstand, prudenti^ declines 
making the amendment We roust, therefore, assume 
that this payment would reduce his interest in the land 
belowdOr. That being so, I think he ia not entitled to 
be rMistered as a 40*. freeliolder. 

wiuxaiu^ J.— I am of the same opinion. At first, 
I had some diffienlty in understanding on what prin- 
ciple the